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THE   LAW 


OF 


PAETNEESHIP. 


BY 

CLEMENT  BATES, 

JCDOE   OF   THE    COMMON   PlEAS    CoUET,   HAMILTON   CJonNTY,  OhIO; 

author  of 

"Ohio  Digest,"  "Pleadings,  Parties  and  Forms  dndeb 
THE  Code,"  and  "Limited  Paetnebship." 


YOL.  I. 


CHICAGO: 

T.  H.  FLOOD  AND  COMPANY. 

1888. 


t 
% 


Entered  according  to  Act  of  Congress,  in  the  year  1888,  by 

CLEMENT  BATES, 
In  the  Office  of  the  Librarian  of  Congress,  at  Washington. 


-r  , 


\2t2 


STATE  JOURNAL  PRINTING  COMPANY, 

PBINTEUS   and   STEHEOTYPEItS, 
MAUISON,  WIS. 


PREFACE. 


This  book  is  the  outcome  of  labors  undertaken  (at  first  without 
any  idea  of  publication),  and  pursued  for  years  in  hours  which 
should  have  been  devoted  to  leisure  and  rest  from  practice.  Its 
origin  was  in  a  desire  to  resurrect  a  quantity  of  law  believed  to 
exist,  but  not  generally  accessible,  either  because  inclosed  in  cases 
not  classified  with  partnership  law,  or  disguised  in  the  generalities 
of  a  harmless  looking  syllabus  or  index.  To  find  this,  involved 
examining  each  volume  of  reports,  one  by  one,  and  making  abstracts 
of  the  points,  facts  and  dicta  of  every  case.  This  was  done  for  a 
long  time  as  a  pleasant  study  without  definite  design  of  exhausting 
the  subject,  but  as  the  collection  expanded  from  hundreds  into 
thousands,  and  the  germinative  principles  were  seen  to  grow  into 
a  vast  and  intricate  forest,  the  increasing  fascinations  of  the  pursuit 
converted  the  recreation  into  a  task  of  great  severity;  and  when 
the  collection  of  raw  material,  nearly  three  times  the  size  of  this 
book,  appeared  to  be  too  useful  a  weapon  to  be  confined  to  the 
author's  miscellaneous  practice,  the  desire  to  complete,  condense 
and  organize  it  for  the  general  use  of  the  profession  followed.  Ac- 
cordingly, no  one  of  the  nearly  eleven  thousand  partnership  cases 
in  the  common  law,  whether  English,  Irish  or  American,  includ- 
ing Canadian  and  New  Bruns^vick,  has  been  consciously  overlooked 
or  omitted. 

The  construction  of  the  book  (also  a  long  and  not  yet  satisfactory 
effort)  is  based  on  an  ideal,  explained  in  the  preface  to  the  author's 
little  work  on  Limited  Partnership,  placing  the  more  fundamental, 
constant  or  ultimate  principles  in  a  comparatively  prominent  type, 
and  offering  illustrative,  subordinate,  qualificative  or  exceptional 
matter  in  a  less  conspicuous  form  in  proportion  to  its  value.  This 
treatment,  differing  from  codification  in  explaining  principles  in- 
stead of  formulating  rules,  and  to  be  carefully  distinguished  from 
the  method  of  several  excellent  books  made  in  a  codified  form, 
partakes  of  the  same  impossibility  of  perfection,  and  in  so  far  as 


723538 


iv  PREFACE. 

it  tends  to  keep  a  high  ideal  before  the  reader's  eye  may  expose 
the  author  to  criticism  in  proportion  as  his  attempt  falls  short, 
as  it  must,  of  the  mark.  It  also  discloses  the  vast  disproportion 
which  the  labor  and  thoughts  of  other  lawyers  in  a  law  book 
bear  to  the  author  s  own  small  original  contribution.  But  its 
compensations  are  in  the  service  afforded  by  the  mere  attempt 
as  the  fore-runner  of  something  better,  and  in  facilitating  a  more 
rapid  study  of  the  law,  a  clearer  separation  or  recognition  of  what 
is  fundamental,  and  a  readier  search  for  applicable  authorities 
iwhich  forms  so  large  a  part  of  modern  practice,  and  to  give  which 
in  larger  numbers  a  condensed  rather  than  elaborate  style  has 
been  adopted  in  this  book.  The  careful  study  of  the  cases  has  had 
the  result  also  of  developing  a  not  inconsiderable  want  of  har- 
mony in  our  American  law,  the  exhibition  of  which  may  assist  in 
converging  our  jurisprudence  into  an  increasing  uniformity. 

It  would  be  invidious  to  mention  the  great  writers  whose  works 
mark  the  history  of  the  law  of  partnership,  further  than  to  express 
a  keen  appreciation  of  the  great  care  and  fidelity  with  which  the 
English  decisions  have  been  studied  by  them.  The  American  law, 
however,  not  only  has  several  new  topics,  but  in  many  respects 
has  developed  along  lines  diverging  from  the  English,  and,  in  a 
few  respects,  quite  opposite;  and  the  chief  value,  or  at  least  greatest 
pains  taken  in  this  book,  has  been  to  emulate  their  industry  in 
the  far  vaster,  though  less  orderly,  field  of  our  own  country. 

I  desire,  in  closing,  to  express  most  grateful  acknowledgments  to 
my  friend,  the  learned  and  accomplished  Librarian  of  the  Cincinnati 
Law  Library,  Mr.  M.  W.  Myers,  for  his  constant  and  often  much- 
needed  encouragement  in  this  laborious  method  of  working  out  a 
legal  topic,  and  to  hope  that  his  faith  in  its  usefulness  may  be 
partially  realized. 

CLEMENT  BATES. 

ClNOIN']S"ATI,  jAiTUARY,  1888. 


CONTENTS. 


VOLUME  I. 
PART  I.     NATUEE  AND  FORMATION. 

CHAPTER  I.     PARTNERS  AND  PARTNERSHIP  DEFINED. 

Definition,  1.  Kinds  of  Partners  and  Partner- 

Is  a  contract  relation,  8.  ship. 

Not    created    by  implication   of  Active  and  ostensible,  9. 

law,  3.  Secret  or  dormant,  10. 

Defective  corporations,  4-7.  Nominal,  11. 

Firm  becoming  incorporated,  8.  Kinds  of  partnerships,  12. 

Universal  partnerships,  13. 

Mining  partnership,  14. 

CHAPTER  II.     TESTS  OF  A  PARTNERSHIP. 

Inter  se  and  as  to  third  persons,  15.  II.  Sharing  Profits,  Nothing  Be- 

Earlier  English  law,  16.  ING  Said  as  to  Losses. 

Intention,  17.  With  joint  capital,  81. 

Mutual  agency  a  test  of  intention,  18.  Illustrations  of  true  partnerships,  32. 

Modern  law  —  English,  19.  Illustrations    of    partnership    as    to 

Independent     contractors     dividing  third  persons,  33. 

profits  of  a  job,  20.  Where  one   furnishes  all  the  capi- 

Loan  on  profits  as  interest ;  annuity  tal,  34. 

creditor,  21.  Investments  on  joint  account,  35. 

Same  with  large  powers  of  control,  Without  co-ownership  in  the.  busi- 

23-  ness,  36. 

Influence    of    Cox  v.    Hickman    in  Control  or  power  of  disposition  as  a 

America,  23.  test,  37. 

Proximate  tests  of  intention,  24.  Contracts  to  manufacture  in  which 

,    „  ^         ^  ^  each  is  principal,  39. 

I.  Sharing  Both  Profits  AND  Loss.    ,ht,  S^^-       •  •  .,     ,    .„ 

Where  profit  is  a  joint  fund,  40. 

With  a  common  stock,  26.  Services  in  procuring  sales,  41. 

Same ;  services,  27.  Arrangements  to  collect  a  debt,  42. 

Wlien   one  contributes  whole  capi-  Profits  as  compensation  for  services, 

tal.  28.  43. 

Sharing  profit  and  loss,  when  not  a  Profits  as  rent,  45. 

partnership,  29.  Profits  as  interest  on  loans,  47. 

V 


VOL.L 


CONTENTS. 


Part  I,  Ca  V. 


Executors  and  trustees  as  partners, 

51. 
Other  representatives,  54, 
Annuitants,  55. 

IIL  Sharing  Profits  With  Stipu- 
lation Against  Losses,  56. 

Sharing  losses  only,  57. 

IV.   Sharing  Gross  Receipts,   58. 
Working  or  letting  on  shares,  59. 


brokers,  60. 


though  both   furnish  ez])enBe8 

or  outlays,  61. 

herding,  62. 

tenants  in  common  dividing  re- 
turns, 63. 

Joint  enterprise  not  for  profit,  64. 

pooling  arrangements,  66. 

common  fund,  67. 

Cheese  factory,  68. 

Patents,  69. 

Ship-owners,  70. 

Joint  cargo,  71. 


CHAPTER  III.    JOINT  STOCK  COMPANIES,  CLUBS  AND  GRANGES. 

Joint  stock  companies,  72.  what  constitutes  membership, 

liability,    and    how    enforced,       74. 

73.  Clubs,  75. 

Granges  and  co-operative  stores,  76. 


CHAPTER  IV.     INCHOATE  PARTNERSHIPS. 

Executory  agreement  not  a  partner-  Oral  conditions,  85. 

ship,  78.  Waiving  conditions    by  launching, 
intention  to  form  a  partnership,  86. 

79.                                                             payment  for    future  partner- 
Purchases    in    contemplation    of    a  ship,  87. 

partnership,  80.  Options  to  become  a  partner,  88. 

What  are  not  in  futuro,  81.  Promoters  of  corporations,  89. 
Conditions  precedent,  83. 


CHAPTER  V.     BY  HOLDING  OUT. 


In  general,  90. 

Plaintiff's  knowledge  necessary,  91. 
Holding  out  to  the   world  is  erro- 
neous, 93. 
criticism  and  suggestion,  93. 


Language  amounting  to  a  holding 

out,  101. 
In  tort,  102. 

Confers  no  rights  inter  se,  103. 
Strangers,  how  affected,  104. 

probable    explanation    of    the    Creditors,    how     affected;    reputed 

cases,  94.  ownership,  105. 

Defendant's  knowledge,  95.  Individual  using  a  firm  name,  106. 

Acquiescence,  96.  Two  firms  using  the  same  name,  107. 

Prior  unknown  acts  of  holding  out.    Deceptive  similarity  of  names,  lOS. 
98.  Actions  by  and  against  nominal  part- 

What  constitutes  a  holding  out,  99.        ners,  109. 

retaining  the  old  name,  100. 

vi 


Vol.  L 


CONTENTS. 


Part  I,  Ch.  VIL 


CHAPTER  VL     ILLEGAL  PARTNERSHIPS. 


As  to  persons,  110. 

in  a  public  office,  111. 

As  to  occupations,  118. 

bidders    on    public   contracts, 

113. 

nontracts  void  by  law,  114. 

Illegal  ventures  of  a  legal  partner- 
ship. 115. 

Title  to  the  assets,  116. 

Presumption  against  illegality,  117. 

Judicial  accounting  of  an  illegal 
partnership,  118. 

L  Refused  between  wrong-doers,  119. 


part  of  the  business  legal  and 

part  not,  121. 
Motives,  122. 

II.  Where  the  illegality  is  wholly  a 
thing  of  the  past,  123. 

III.  When  not  wholly  past,  124. 
Brooks  V.  Martin,  125. 
Explanations  of  Brooks  v.  Martin, 

126. 

Cases    enforcing   payment    of    bal- 
ances, 127. 

Cases  denying  payment,  128. 

Neglect  to  register,  129. 


CHAPTER  VII.     PERSONS  COMPOSING  THE  FIRM. 


Persons  who  may  be  partners,  130. 

Aliens,  131. 

Lunatics,  133. 

Corporation  generally  cannot  be  a 

partner,  133. 
may  receive  capacity,  134. 

Married  Women. 

In  general,  135. 

Where  the   husband  is  not  in  the 

firm,  136. 
Property  in  such  cases,  137. 
Husband  deemed  the  debtor,  when, 

138. 
As  a  partner  of  her  husband,  139. 
Effect  on  property,  140. 
Wife's  claim  against  husband's  firm, 

141. 

Infants. 

Voidable,  not  void,  142. 
Rights  and  powers  iiiter  se,  143. 
Accounting  and  payment  of  losses, 

144. 
Ratification,  145. 

contracts  after  majority,  146, 

Creditors'  rights  in  the  assets,  147. 
Actions  by  and  against,  148. 
Judgiueut  a  partnership  debt,  149. 
Firm  as  partner  in  another  firm,  1-50. 


Dormant  Partner. 

Who  is  a,  151. 

the  firm  name  not  decisive,  152. 

Need  not  abstain  from  participation, 
153. 

Powers  of  dormant  partner,  154. 

Property  deemed  to  belong  to  osten- 
sible partner,  155. 

Liability  of  dormant  partner,  156. 

Rationale  of  his  liability,  157. 

Delectus  Personarum. 

In  general,  158. 

Cannot  make  the  firm  partner  in 
other  concerns,  159. 

Consent  in  advance,  160. 

Ratification  and  acquiescence,  161. 

Effect  inter  se  of  sale  of  share,  163. 

Partnerships  without  delectus  per- 
sonarum, 163. 

Sub-Partnerships. 

Sub-partner  not  a  member  of  princi- 
pal firm  inter  se,  165, 

Nor  has  he  a  right  to  accounting, 
167. 

Nor  is  he  a  partner  as  to  creditors, 
16S. 

Rights  of  sub-partners  inter  se,  169. 


Vll 


Vol.  L 


CONTENTS. 


Part  II,  Ch.  I. 


CHAPTER  VnL     FIRM  AS  AN  ENTITY. 

Opposing  conceptions  of  a  firm,  170.    Licenses,  178. 

Taxation  of  a  firm,  175.  Filing  of  chattel  mortgages,  179. 

Branch  business,  177.  , 


CHAPTER  IX.     SHARES  OR  INTEREST  OF  EACH. 


Nature  of,  180. 
Presumed  equality  of,  181. 
Mortgage  or  sale  of  a  share,  183. 
Subject  to  subsequent  firm  debts,  185. 
' and    subsequent    conveyances, 


Assignee's  rights,  187. 

Mortgage    of    share  to    a   partner, 

188. 
Whether  sale  of  shares  separately  la 

a  sale  of  the  whole,  189. 


186. 


CHAPTER  X.     THE  FIRM  NAME. 


Rationale  of,  191. 

Name  of  one  as  a  firm  name,  193. 

Changing  or  adding  another  name, 

193. 
Substituting    firm    for     individual 

names,  and  viceversa,  194. 
One  firm  with  several  names,  195. 
Two  firms  with  one  name,  196. 
Form  of  signing,  197. 
Illegal  names,  198. 

Power  of  a  Partner  in  Relation 
TO  THE  Name. 

Cannot    bind    the    firm    by    wrong 
name,  199. 


Individual  names  instead    of    firm 

name,  200. 
If  no  name  has  been  adopted,  201. 
Immaterial     deviation     from    true 

name,  203. 
Other  name  by  assent,  203, 
Particular    authority    executed    in 

wrong  name,  204, 
Credit  to  firm  under  wrong  name, 

205. 
Where  the  partners  are   plaintiffs, 

206. 


PART  11.     CONDUCT  OF  THE  BUSINESS. 


CHAPTER  I.     ARTICLES  OF  PARTNERSHIP,    207. 


Statute  of  frauds,  208. 

Oral  evidence,  210. 

Altered  by  conduct  and  construed  by 

practice,  311. 
Provisions  not  acted  on,  213. 
unanimous    assent    necessary, 

213. 


suggested  restriction  of  above 

principle,  814, 
Ambiguities     construed    by    firm's 

practice,  215. 


Continue  in  force  if  firm  continues 
after  term,  216. 

So  of  a  new  firm,  317. 

Clauses  which  do  not  continue,  318. 

Rights  of  third  persons  in,  219. 

Firm  name,  220. 

Time  partnership  begins,  221. 

Duration,  233. 

Business  to  be  stated,  223. 

Fidelity  to  the  firm;  competing;  com- 
pensation, 224. 


vm 


Vol.  I. 


CONTENTS. 


Part  II,  Ch.  III. 


books  and  accounts,  225. 

Capital,  226. 

Real  estate,  227. 

Division  of  profits,  228. 

Meaning  of  profits,  229. 

Net  profits,  230. 

Losses,  231. 

Restrictions  on  powers,  233. 

Arbitration  clause,  233. 

power  of  arbitrators,  234. 

Allowances  for  subsistence,  235. 
Interest,  236. 
Expenses,  237. 
Dissolution,  238. 

Covenant    to    indemnify    outgoing 
partner,  239. 


Outgoing  partner  not  to  compete, 
240. 

Expulsion  of  a  partner,  241. 

To  be  exercised  bona  fide,  242. 

Right  to  return  or  sell  a  share,  243. 

Valuation  of  share  of  outgoing  part- 
ner, 244. 

if  last  valuation  is  imperfect, 

245. 

representatives    and    assignees 

bound,  246. 

Specific  performance,  247. 

Good  wUl,  248. 

Continuance  after  death ;  represent- 
atives; annuitants,  249. 

Penalty,  250. 


CHAPTER  II.    CAPITAL  AND  PROPERTY. 


What  is  capital,  251. 
Other  than  money,  253. 
Contribution  should  be  free  of  liens 

and  charges,  254. 
Right  to  increase  it,  255. 
Is  not  individual  property,  256. 
Partnership  in  profits  alone,  257. 
When  not,  258. 
Purchases  with  profits,  261. 
Purchase  by  one  may  be  advances, 

262. 
Incoming  partners,  2G3,  264. 
Acquired  with  joint  funds,  265. 


Individual     property    acquired      at 

firm's  expense,  266. 
Claims  outside  of  scope,  267. 
Claims  for  damages.  268. 
Personal  benefit,  269. 
Insurance  cases,  270. 

taking  in  a  partner,  271. 

retirement    of    one  of    several 

partners,  272. 
retirement  of  one  of  two  part- 


ners, 273. 
Possession,  274. 

No  crime  against  possession,  277. 
Exclusive  right  of  possession,  278. 


CHAPTER  III.     REAL  ESTATE. 


In  general,  279. 

When  it  is  part  of  the  joint  stock,  280. 

procured     with      partnership 

funds,  281. 
improvements  out  of  joint  funds. 


283. 
—  taken  for  debt,  283. 


Books  show  intention,  284. 
Use  of  funds  not  conclusive,  285. 
Use  of  property  not  conclusive,  286. 
Co-owners  going  into  business,  287. 


Incoming  partners,  288. 
Pennsylvania  rule,  289. 
Consequences  of  the  conversion,  290. 
Sales   and   incumbrances   of    share, 

291. 
The  legal  title;   conveyances  of  it, 

292. 

same  in  case  of  death,  293. 

surviving     partner      aided     by 

equity,  294. 
Notice  to  third  persons,  295.^ 


IX 


Vol.  I. 


CONTENTS. 


Part  II,  Ch.  VI. 


Conveyances  in  a  firm  name,  296. 

Surplus  is  real  estate  in  this  country, 
297. 

Out  and  out  conversion  into  person- 
alty, 298. 


Power  of  individual  partners  to  bind 

firm,  299. 
Surviving  partner,  300. 
Statute  of  frauds,  301. 
Partnership  to  trade  in  lands,  303. 


CHAPTER  IV.     DUTY  TO  OBSERVE  GOOD  FAITH. 


In  general,  303. 

in  all  stages,  304. 

Buying  interests  in  firm's  property, 

305. 
Competing  with  the  firm,  306. 
Commissions  from  dealers,  307. 


Buying  out  or  selling  to  a  copartner, 
308. 

Buying  at  execution  sale,  311. 

Abandonment  or  neglect  by  com- 
plaining partner,  312. 

Duty  to  keep  accounts,  313. 

Access  to  books,  314. 


CHAPTER  V.     IMPLIED  POWERS  OF  EACH. 


In  general,  315. 

Nature  of  the  business,  316. 

-: — same  as  against  third  persons, 

317. 
Usages  of  similar  firms,  318. 
Usages  of  the  same  firm,  319. 
Necessity  as   an  element  of  scope, 

320. 
Incidental  bent?fit,  321. 


Restrictions  in  ai-ticles,  322. 

unless  known,  3i3. 

proof  of  knowledge,  324. 

Revocation  of  power   by  dissent  of 
one,  325. 

limit  on  the  right  to  dissent,  326. 

What  are  trading  partnerships,  327. 
Same,  328. 
Non-trading  firms,  329. 


CHAPTER    VI.      PARTICULAR    POWERS    BEFORE    DISSOLUTION. 


Accounts,  330. 

Admissions,  331-332. 

As  Agents  of  Others,  333. 

Agents    and    Employees   of   the 
Firm,  334. 

Arbitration,  336. 

Assign  for  Creditors. 

In  general,  338. 

Ratification,  389. 

Absence  as  authorization,  340. 

Bills  and  Notes. 
In  trading  firms,  341. 
In  non-trading  firms,  343. 
Joint  and  several,  346. 
For  separate  debt,  347. 


Subsequent  misappropriation  distin- 
guished, 348. 

Signing  firm  name  as  security,  349. 

real  transaction  considered,  351. 

Bona  fide  holder  protected,  352. 

who  is  a  bona  fide  holder,  353. 

negligent  buyer  of  paper,  354. 

broker  is  not  agent  of  buyer,  355. 

usury,  356. 

renewals,  357. 

Notice  from  form  of  paper,  358. 

Member  of  several  firms,  359. 

illustrations,  360. 

Burden  of  proof;  presumed  given 
for  firm,  361. 

shifting    of    this    presumption, 

362. 

Ratification,  363. 


Vol.  L 


CONTENTS. 


Part  II,  Ch.  VI. 


—  by  habit  or  usage,  364. 

—  by  acknowledgment,  365. 

—  by  acting  under  the  unauthor- 
ized act,  3G6. 

■by  silence,  367. 


Prior  authority  deviated  from,  868. 
declarations,  369. 

Borrowing  Power. 

In  trading  firms,  370. 
Non-trading  firm,  371. 
Form  of  borrowing,  372. 

Buying. 

In  trading  firms,  373. 

non-trading  firms,  374. 

delivery  to  one,  375. 

varying  the  contract,  376. 

Confessions  op  Judgments. 

No  such  power,  and  why,  377. 

Assent  and  ratification,  378. 

Valid  against  the  partner  in  fault, 

379. 
Remedy    of  non-assenting    partner, 

380. 

Debts. 

Power  to    collect    and    receipt    for 

debts  due  to,  381. 

payments  not  in  money,  383. 

releases,  383. 

Debts  due  from  the  firm,  384. 
Release  of  one  partner  by  creditor, 

385. 
reserving    claim    against    rest, 

386. 

statutes,  387. 

inter  se,  388. 

Notice  to  One. 

Is  notice  to  all,  389. 

So  of  knowledge  of  one,  390. 

Notice  before  the  partnership  is 
formed,  391. 

On  purchases  of  property,  393. 

Defenses  to  mercantile  paper,  393. 

Knowledge  obtained  in  other  capac- 
ities, 394. 


As  affected  by  scope  of  business,  395. 
As  affected  by  duty  and  opportunity 

to  communicate,  396. 
Protesting  notes,  etc. ;  demand   on 

one,  397. 
notice  to  one  of  indorsing  firm, 


398. 


•  dispensed  with,  399. 

•  partner  common  to  two  firms. 


400. 


Personal  Property. 


Power  to  sell,  401, 

Sales  with  warranty,  403. 

Power  to  sell  whole,  403. 

Power  to  pledge  or  mortgage,  406. 

Execution  of  chattel  mortgage,  407. 

To  alter  contracts,  408. 

To  insure  or  protect  property,  409. 

To  pay  separate  debts  with  assets, 

410. 
Trading  out  debts,  411. 
Appropriation  of  payments,  412. 

Sealed  Instruments. 

In  general,  413. 
Release  under  seal,  415. 
Parol  authority  or  assent,  416. 
Assent  to  conveyance  of  real  estate, 

417. 
Unnecessary  seal  as  surplusage,  418. 
Single  seal  for  all,  419. 
Merger,  420. 

Executing  partner  bound,  431. 
Remedy  in  equity.  423. 
Rights  of  surety  on  the  instrument, 

423. 

Ratification  and  Authority. 

In  general,  424. 

Creditor  partner's  authority,  425. 

Knowledge  necessary,  426. 

Prior  acts,  427. 

Failure  to  dissent,  428. 

Acting  under  unauthorized  contract, 

429. 
Practice,  430. 


XI 


Vol.  I.  CONTENTS.  Part  IT,  Ch.  X 

CHAPTER  VII.     POWERS  OF  A  MAJORITY. 

As  to  third  persons,  431.  In  fundamental  naatters,  434. 

Inter  se,  432. 

CHAPTER  VIII.     CONTRACTS  WITH  ONE  PARTNER, 

lu  general,  436.  Firm  not  liable  by  getting  benefit, 
Simple  contracts  other  than  mercan-       446. 

tile  paper,  437.  When  firm  is  trusted  and  when  one 
Sealed  instruments  in  name  of  one       only,  447. 

partner,  438.  Evidence  charging  the  firm,  448. 

Negotiable  instruments  in  name  of  admissions  in  books  and  letters, 

one  partner,  439.  449. 

Liability  of  firm  on  original  consid-  contemporaneous  declarations. 

eration  when  not  bound  by  paper,        450. 

440.  The  individual  partner  and  his  sure 
Bills  on  or  to  account  of  firm,  441.  ties.  451. 

Renewal  of  firm  debt  by  individual  Note  signed  by  all  individually,  452. 

note,  443.  may   be  shown  to  be  partner- 
Firm  in  the  name  of  one  partner,       ship  note,  453. 

443.  election  to  treat  it  as  separat« 

Dormant  and  undisclosed  partner-       or  joint,  453a. 

ships,  445. 

CHAPTER  IX.     DEGREE  OF  LIABILITY  ON  CONTRACTS. 

Contracts  are  joint  and  not  joint  and  In  solido,  457. 

several,  454.  Joint  stock  companies,  458. 

Inter  se,  455.  Limited  by  contract,  459. 

Contra  by  statute,  456.  Limited  partnerships,  460. 

CHAPTER  X.     LIABILITY  FOR  TORTS. 
In  general,  461.  Money  or  Property  Wrongfully 

Negligence  of  servants,  463.  Obtained  by  One  for  Benefit 

Scope  of  authority,  464.  OF  FiRM,  478-480. 

in  collecting  debts,  465.  „ 

wilful   torts   and  violation  of       Trust  Funds  Used  for  Firm. 

statutes,  467.  Innocent  partners  not  liable,  481. 

Ratification,  469.  Incoming  partners,  482. 

Nominal  partner,  470.  Participants  all  liable,  483. 

Liability  is  joint  and  several,  471.  Liability  is  joint  and  several,  484. 

Accountability  is  for  profits  or  in- 
Frauds  and  Misrepresentations.       terggt  435 

Deceit  in  regard  to  their  own  prop-   Following  the  fund,  486. 

erty,  472.  Repayment  to  the  trustee,  437. 

Other  frauds,  473. 


Misapplications     of    Money    oe 
Property,  474-477. 

zii 


Crimes,  488. 


Vol.  I. 


CONTENTS. 


Part  II,  Ch.  XIL 


CHAPTER  XL     PAYMENT,  NOVATION  AND  MERGER. 


Application  of  Payments. 

In  general,  489. 

Where  firm  and  one  partner  are 
creditors,  490. 

Where  firm  and  one  partner  are 
debtors,  491. 

Partnership  money  to  be  applied  to 
its  debts,  493. 

if  creditor  has  no  notice  of  nat- 
ure of  fund,  494. 

individual  money,  495. 


If  neither  party  specify  appropria- 
tion, 496. 
Running  account,  497. 

change  in  debtor  firm,  498. 

change  in  creditor  firm,  499. 

accounts  not  continuous,  500. 

Novation. 

In  general,  502. 

Creditor  must  assent,  503. 

Consideration,  505. 

Original  debtor  still  liable,  506. 

incoming  partner  not  liable  for 

old  debts,  507. 
may  adopt  old  debts,  510. 

assumption    shown    by    acts; 

estoppel,  511. 

entries  on  books  of  new  firm,  513. 

examples  of  agreements  inter 

se,  513. 

fraud  on  the  incoming  partner, 

514 


note  for  debt  assumed  by  new 

firm,  515. 

assent  of  creditor,  616. 

practice,  517. 

Change  without  incoming  partner, 
518. 

Old  firm  must  be  discharged,  531. 

As  against  sureties,  523. 

Note  or  bill  as  evidence  of  novation, 
533. 

Note  of  one  partner  before  dissolu- 
tion, 524. 

Note  of  ostensible  partner,  525. 

Note  in  firm  name  after  dissolution, 
526. 

Of  continuing  partner  who  assumed 
debts,  528. 

Note  of  surviving  partner,  529. 

Creditor  and  debtor  becoming  part- 
ners, 530. 

Payment  by  one  extinguishes  the 
debt,  531. 

Ektirinq  Partner  as  Surety. 

Inter  se,  533. 

As  to  creditors ;  English  cases,  533. 

American  cases,  534. 

•   Merger. 

Judgment  against  one  partner,  535. 
Where  partners  are  jointly  and  sev- 
erally liable,  537-539. 


CHAPTER  XII. 


CONVERSION  OF  JOINT  INTO  SEPARATE 
PROPERTY. 


In  general,  540. 

Inchoate  transfers  inter  se,  541. 

Choses  in  action,  543. 

Taking  funds  without  consent  of  all, 

544. 
Following  the  funds,  545. 


implied  assent,  546. 

Delivery  or    change  of   possession, 

547. 
sale  by  one  partner  to  a  third 

person,  548. 


xm 


Vol.  II. 


CONTENTS. 


Part  III,  Ch.  IL 


Retirino  Partner's  Equitable 
Lien. 

Retiring  partner  has  no  lien,  550. 
Continuing  partner  assuming  debts, 

551. 
Retention  of  lien  by  the  contract, 

552. 
Remedies  in  such  cases,  554. 

Successive  Firms. 

In  general,  555. 

Retirement  of  old  without  new  part- 
ners, 556. 

New  partner  and  retirement  of  old, 
557. 

New  partner,  no  old  one  retiring, 
658. 


Fraudulent  Conveyances. 

Sale  between  partners,  559. 

authorities  holding  it  valid,  560. 

Dividing  up  the  assets,  561. 

Authorities  restricting  the  right  to 
sell,  503. 

Examples,  563. 

Withdrawing  funds  if  a  gift  is 
fraudulent,  564. 

Paying  a  debt  of  one  partner,  565. 

Same,  when  a  fraud  on  creditors, 
566. 

Assumption  of  debt  on  moral  con- 
sideration, 567. 

Important  cases  which  rest  on  no 
principle  whatever,  568. 

Conveyances  of  separate  property, 
569. 


YOLUME  II. 


PART  III.    DISSOLUTION. 

CHAPTER  I.     CAUSES  OF  DISSOLUTION. 


Any  change  of  membership,  570. 
Partnership  at  will,  571. 
Partnership  for  indefinite  term,  572. 
Notice  to  dissolve,  574. 
Evidence  of  dissolution,  575. 

change  of  name,  576. 

Right  to  dissolve  for  a  term,  577. 
Damages  for  premature  dissolution, 

578. 
Dissolution  for  cause,  579, 
Death,  580. 
Insanity,  581. 
War,  582. 


Bankruptcy  or  insolvency,  583. 

Execution,  584. 

Alienation  of  interest  of  one,  585. 

Sale  of  part  of  interest,  586. 

Sale  of  the  entire  effects,  587. 

Marriage,  588. 

Abandonment,  589,  590. 

Misconduct,  591. 

Hopelessness  of  success,  593. 

Dissensions,  594. 

Deception,  595. 

Completion  of  enterprise,  596. 

Date  of  dissolution,  697. 


CHAPTER  IL     CONTINUANCE  AFTER  DEATH. 


By  will  or  contract,  598. 
Agreement  must  be  express,  599. 
To  what  extent  the  estate  is  bound, 
600. 

xiv 


Powers  of  executor,  604. 
Subsequent  accretions,  605. 


Vol.  II. 


CONTENTS. 


Part  III,  Ch.  VI. 


CHAPTER  III.     NOTICE  OF  DISSOLUTION. 


Necessity  of,  606. 
Dormant  partner,  608. 
Dissolution  by  operation  of  law,  610. 
Notice  necessary  in  all  other  cases, 

611. 
Actual  notice  to  former  dealer,  613. 

who  is  a  former  dealer,  613. 

Mailing  is  not  actual  notice,  616. 
Subscriber  of  paper,  617. 
Notice  to  non-dealers,  618. 
Substance  of  the  publication,  619. 


by  whom,  620. 


Knowledge  equivalent  to  notice,  631. 
Notoriety  as  a  substitute  for  notice, 

633. 
Notice  by  change  of  name,  633. 
Long  interval  of  time  or  space,  634 
To  whom  to  give  notice,  635. 
On  what  contracts,  636. 
Pleading  and  evidence,  627. 
Holding  out  after,  628. 


CHAPTER  IV.    CONTRACTS  OF  DISSOLUTION. 


Debts  due  by  or  from  retiring  part- 
ner extinguished,  629. 
Sale  to  third  persons.  631. 
Debts  not  on  the  books,  632. 
What  passes  by  a  sale  of  a  share,  633. 

Assumption  of  Debts  by  Continu- 
iNa  Partnebs. 

By  implication,  634. 
By  contract  or  bond,  635, 
Covenant  to  pay,  636. 
danger    of  obligee's  misappro- 
priating recovery,  637. 


Covenant  to  release  or  be  solely 
responsible,  638. 

Covenant  to  indemnify  or  hold 
harmless,  639. 

Covenant  to  assume,  640. 

Covenant  to  api^ly  assets,  641. 

Examples  of  constructions  of  cove- 
nants, 643. 

What  debts  are  included,  643. 

Liabilities  concealed  by  retiring  part- 
ner, 644. 

Incoming  partners,  645. 

Existing  claims  on  the  property,  646. 

Statute  of  frauds,  647. 


CHAPTER  V.    EFFECT  ON  SURETIES,  648. 


Sureties  to  a  firm,  649. 

when  a  partner  is  added,  650. 

Sureties  for  a  firm,  653. 


Loss  of  a  member,  653, 

addition  of  a  partner,  654. 

Application  of  payments,  656. 


CHAPTER  VL     GOOD  WILL,  657. 

Does  not  survive,  658.  Seller's  solicitation  of  old  customers, 

Incident  to  locality  oftener  than  to        666. 

stock,  659.  limitation  of  this  doctrine,  667. 

Court  will  protect  it  to  effect  sale,    Professional  partnerships,  668. 

660. 
Valuation  of  good  will,  661, 
in  case  of  misappropriation,  668. 


Sale  of  good  will,  663. 
Seller  can  resume  business,  664. 
So  can  surviving  partner,  665. 
B 


Eight  to  Firm  Name  after  Disso- 
lution, 669. 

Buyer's  right  to  the  old  name,  670. 
Retiring  partner's  name   not  to  be 
used,  671. 


XV 


Vol,  II. 


CONTENTS. 


Part  III,  Ch.  VIII. 


Continuing  partner's    right    to    old 

name,  673. 
Surviving    partner's    right    to    use 

name,  673. 
Trade  name,  674. 
Trade  mark,  675. 


Agreements  Not  to  Compete. 

Reasonableness  of,  676. 
Breaches,  677. 
Injunction,  678.' 


CHAPTER  VII.     BIPLIED  POWERS  AFTER  DISSOLUTION. 


Implied  Po'wers  after  Dissolu- 
tion. 

In  general,  679. 

Power  to  pay  debts,  680. 

Power  to    collect    and    receipt    for 

debts,  681. 
Power  not  revocable  by  copartners, 

683. 
where    one    partner    becomes 

owner,  683. 
Nature  of  title  not  changed,  685. 
Power  to  dispose  of  property,  686. 
to  assign  for  creditors  or  confess 

judgment,  688. 
Power  to  assign  negotiable  paper, 690. 
Paper  made  before  and  issued  after 

dissolution,  691. 


Expenses  and  contracts  in  winding 

up,  693. 
Cannot  borrow  even  to  pay  debts, 

693. 
Nor  sign  negotiable  paper,  694. 
Liquidating  partner,  695. 
Power  to  waive  demand,  696. 

demand  on  one,  697. 

Ratification  or  authority,  698. 
Admissions  after  dissolution,  699. 
Statute  of  limitations,  703. 

revive  an  extinct  debt,  703. 

to  prolong  time,  704. 

Contra,  705. 

Unfulfilled  contracts,  707. 

Distinctions,  703. 

time  contracts,  709. 

Surviving  partners,  711. 


CHAPTER  VIIL     SURVIVING  PARTNERS 


In  general,  713. 

Who  is  a;  dissolution  before   death, 
713. 

Death  of  both;  administrator  of  last 
survivor,  714. 

Survivor  alone  entitled  to  wind  up, 
715. 

interference  by  the  administra- 
tor, 716. 

waiver  of  the  right  to  wind  up, 

717. 

Title  of  surviving  partner,  718. 

execution  against  deceased,  780. 

pardon  of  survivor,  731. 

cannot  join  administrator  as  co- 
plaintiff,  733. 

Set-off  of  individual  debts,  723. 

Practice,  734. 


death  of  a  partner  pen  derafe  lite, 

725. 

General  powers,  726. 

no  power  to  contract,  737. 

expenses  of  winding  up,  738, 

continuing  contracts,  739. 

Power  of  disposition  in  winding  up, 
731. 

Power  to  assign  for  benefit  of  cred- 
itors, 733. 

Statutory  administrator  of  a  partner- 
ship, 733. 

Surviving  partner's  rights  against 
administrator,  735. 

judgment  as  evidence,  737. 

Administrator's  rights  and  duties  as 
to  survivor,  738. 


XVI 


Vol.  II. 


CONTENTS. 


Part  III,  Ch.  IX. 


Duty  of  administrator,  740. 

in  case  of  misconduct  of  sur- 
vivor, 741. 

Survivor  appointed  executor,  743. 

Purchase  by  survivor  from  executor, 
743. 

same  where  survivor  is  execu- 
tor, 744. 

ratification  of  same,  745. 


Creditors'  Remedy. 

Against  surviving  partner,  746. 
Estate  of  decedent  liable,  747. 
Englisli  law,  748. 
American  law,  749. 
Private  creditors  of  decedent's  estate, 
751. 

Solvent  Partner,  752-755. 

Remaining    partner    after    sale    of 
share,  756. 


CHAPTER  IX.    WINDING  UP  INTER  SE,  757. 

Period  covered  by,  758.  Is  a  debt  of  the  firm  and  not  of  the 

Losses  in  general,  759.  copartner,  779. 

When  some  are  unable  to  contribute,  Damages  for  breach  of  contract  or 

760.  duty,  780. 


Losses  Caused  by  One  Partner. 

Through  culpability,  761. 

as  to  amount,  763. 

Mistakes  of  judgment,  763. 
Diligence,  764. 

Must  account  for  assets  he  has  re- 
ceived, 765. 

Expenses  and  Outlays,  766. 

Useless  expenditures,  767. 
Permanent  improvements,  768. 
After  dissolution,  769. 

Extra  Compensation. 

No  right  to,  770. 

compensation  for  winding  up, 

771. 

so  of  surviving  partner  winding 

up,  773. 

services  in  excess  of  mere  wind- 
ing up,  773. 

Express  agreements  for,  775. 

services  in  other  capacity  than 

as  partner,  776. 

Implied  agreements  for,  777. 

Amount  of,  778. 


Interest  Charges  or  Allowances. 

On  capital,  781. 

Special  agreement  for  interest,  782. 

ends  at  dissolution,  783. 

Usury  laws,  784. 
On  advances  or  loans,  785. 
On  general  accounting,  786. 
On  balance  struck,  787. 
Misconduct,  788. 
Compound,  789. 

Clandestine  Profits. 

Before  dissolution,  790. 

Implied  duty  not  to  compete,  793. 

Dealings    not  in    competition  with 

firm,  793. 
After  dissolution,  794. 
On  unfinished  contracts,  795. 
Wrongful  dissolutions,  796. 
What  amount  to  be  accounted  for, 

797. 
Survivor's  occupation   of    property, 

798. 
Purchase  of  share  at  a  valuation,  799. 
Interest  in  lieu  of  profits,  801. 


xvu 


Same  when  one  furnishes  all  capital, 
815. 


Vol.  11.                                      CONTENTS.  Part  IV,  Ch.  I. 

Return  of  PREMnni.  Capital  to  be  repaid  before  dividing 

In  general,  802.                               '  P^o^ts,  813. 

Partnerships  at  will.  803.  ^°^^^^    ^^^°    ^^P'^^^    ''    impaired, 

813 
Options  to  dissolve  on  notice,  804. 

Misconduct,  805. 
Voluntary  dissolutions,  806. 

Death  and  bankruptcy,  807.  Contrary  case,  816 

.          ^.             .    onn  Examples  of  calculatmg,  817. 

Apportionment,  809,  ^  ,      ,         ,  ,                           r,.o 

Rule  altered  by  agreement,  818. 

Order  of   Distribution  Between  Partnership  in  profits  without  title 

Partners.  in  the  property,  819. 
Statement  of  the  account,  810. 
Order  of  distribution,  811. 

CHAPTER  X.     DISTRIBUTION  AS  TO  THIRD  PERSONS. 

Partner's  lien  and  its  consequences,    what  is  "  no  living  solvent  part- 

830.  ner,"  834. 

The  lien  is  not  for  separate  debts,  821.  No  interest  to  the  separate  creditors. 

Reaches  real  estate  and  property  in  835. 

name  of  one  partner,  833.  Separate  estate  cannot  prove  against 
but  not  debtor's  individual  prop-  joint  estate,  836. 

erty,  823.  Exceptions,  837. 

Creditors  have  no  lien,  834.  Joint   estate    cannot  prove  against 

Joint  creditors  prior  in  joint  prop-  separate  estate,  838. 

erty  and  separate  in  separate,  835.    fraud,  839. 

Contrary  cases,  826.  dormant  partnerships,  840. 

Kentucky  rule,  837.  Double  proof,  841. 

So  in  case  of  deceased  partner,  828.      separate  security,  843. 

.Joint  debts  which  are  not  partner-  One  partner  cannot  compete   with 

ship  debts,  839.  joint  creditors  against  separate  es- 

Petitioning  creditor,  830.  tate,  843. 

Exception  in  favor  of  government,   fraud,  844. 

831.  but  can  compete  with  separate 

No  joint  estate  and  no  living  solvent  creditors,  845. 

partner,  833.  Legal  liens  on  separate  estate,  847. 
what  is  "  no  joint  estate,"  833.  Marshaling,  848. 


PAET  ly.    EEMEDIES. 

CHAPTER  I.     ACTIONS  AT  LAW  BETWEEN  PARTNERS. 

In  general,  849.  Labor  and  services,  854. 

Set-off,  850.  Rent,  855. 

Advances  or  loans,  851.  Share  of  collections,  856. 

Debts  paid  by  one  partner,  853.  For  final  balance,  857. 

Goods  sold,  853.  Express  promise,  858. 

xviii 


Vol.  IL  .  CONTENTS.  Part  IV,  Cn.  III. 

Must  be  in  full  settlement,  859.  Note  by  one  partner  to  another,  880. 

What  is  an  agreed  final  balance,  8G0.  Note  by  firm  to  a  partner,  882. 

Partial  balauce,  861.  Note  by  partner  to  firm,  883. 

Pleading,  862,  indorsee  can  sue,  884. 

Liability  for  ascertained  balance  is  promise  of  compensation,  885. 

several,  863,  Contract  to  make  settlement,  886. 

Exceptions ;  Massachusetts,  864.  Promises  as  to  omitted  items,  887. 

in  single  transactions,  865,  Erroneous  carrying  out  of  adjust- 

single  unadjusted  item,  866.  ment,  888. 

Violation  of  rights  and  duties,  867.  Violation  of  the  articles,  889. 

On  contracts  independent  of  the  busi-  Examples    of    independent    stipula- 

ness,  868.  tions  in  articles,  890. 

Refusal  to  form  the  partnership,  870-  Transactions  taken  out  of  partner- 

872.  ship,  891. 

For  wrongful  dissolution,  873.  Separating  ownership  of  debts,  893. 

Contracts  in  order    to  launch    the  Attachment,  894. 

partnership,  874.  Loss  caused  by  one  partner's  wrong, 
Reimbursement  of  excess    of    con-       895. 

tribution,  875-877.  Deceit  in  formation  of  firm,  897. 

Express  promise  by  one  partner  to  Torts  against  copartner,  898. 

another,  878. 

Paying  deed  on  promise  to  repay.  Action   of   Account    at   Common 

879.  Law,  899. 

CHAPTER  II.    CLAIMS  BETWEEN  FIRMS  WITH  COMMON  MEMBER. 

Cannot  sue  at  law,  900-903.  Can  sue  in  equity,  905. 

assignment  of  the  claim,  904.         And  prove  in  bankruptcy,  906. 

CHAPTER  III.    SUIT  FOR  ACCOUNTING. 

Equity  jurisdiction.  907.                         Sometimes  considered,  919. 
Probate  and  admiralty  jurisdiction,    set  off  against  balance,  920. 

^       ■  ,   .  „  u  ^      4.  -f  Who  Can  Enforce  an  AccouNTiNa 

Refused   if  unnecessary,  but  not  if 

merely  difficult,  909.  Partners,  921. 

Employee  on  share  of  profits,  922. 

Partial  Accounting.  Representatives,  923. 

Must  seek  dissolution  and  winding  Widow  and  heirs  generally  cannot, 

up,  910.  924-926. 

When  granted,  911-915.  Assignee,  etc.,  of  share,  927. 

Settlements  periodically  or  of  dis-  Sale  of  share  on  execution,  928. 

tinct  transactions,  916.  Creditor  at  large,  929. 

Individual  Matters.  Defendants. 

Not  included  in  an  accounting,  917.      All  partners  are  actors  and  neces- 


illustrations,  918.  sary,  930. 

xix 


Vol,  IL 


CONTENTS. 


Paet  IV,  Ch.  IV. 


Successors  in  interest,  931-933, 
Multifariousness,  934. 
Creditors'  rights,  935. 

Pleadinq. 

In  general,  936-938. 
Prayer,  939. 
Answer,  941. 

Defenses  —  Statute    op    Limita- 
tions. 
In  general,  942. 
Merchants'  accounts,  943. 
Contrary  cases,  944. 
When  the  statute  begins  to  run,  945. 

special  circumstances,  946. 

fraud,  947. 

doctrine  tliat    time  runs    only 

from  last  item,  949. 

adverse  possession,  950. 

demand,  951. 

laches,  952. 

Account  Stated,  953. 

What  is  a  stated  account,  954-956. 

Partial  settlements,  957. 

No  disability  to  bargain  with  each 

other,  958. 
Mistakes,  959. 
Error  of  judgment  or  of  law,  960. 


Fraud,  961. 
Burden  of  proof,  963. 
Laches,  963. 

Whether  corrected  or  wholly  opened, 
964. 

Practice. 

Pendency  of  another  suit,  965. 
Decree,  966. 
Master's  report,  968. 
Issue  out  of  chancery,  969. 
Keview,  970. 

Personal    judgment    for    balances, 
971-973. 

Sale. 

In  general,  974. 
Specific  division,  976. 
Manner  of  sale,  977. 

Evidence  in  Accountino. 

Books,  978. 

After  dissolution,  980. 

As  proof  or  disproof  of  partnership, 

981. 
Books  as  evidence,  983. 
Presumptions   in  odium  spoliatoris, 

983. 
Other  evidence,  985. 

Costs,  986,  987. 


CHAPTER  IV.     INJUNCTION  AND  RECEIVER. 


Injunction  without  dissolution,  988.    Against    surviving    or     liquidating 


Pending  action  for  account,  989. 
After  dissolution,  990. 
Exclusion  of  a  partner,  991. 
Mutuality,  993. 
Receiver,  993. 
Before  dissolution,  994. 
After  dissolution,  995. 
Exclusion  of  a  partner,  996. 
Same  in  winding  up,  997. 
Disagreement  on  winding  up,  998. 


partner,  999. 
injunction    against 

partner,  1000, 

and  receiver,  1001. 

Partnership  in  doubt,  1003. 
Partner  as  receiver,  1003. 
Notice  necessary,  1004. 
Of  all  property,  1005. 
Creditors'  rights,  1006. 
Receiver  continuing  business,  100" 
Miscellaneous,  1008. 


Vol.  n.  CONTENTS.  Pakt  IV,  Ch.  VIL 

CHAPTER  V.    SPECIFIC  PERFORMANCE. 


Generally  refused,  and  why,  1009. 
Older  leading  cases,  1010. 
Partnerships  at  will,  1011. 
for  a  term,  1013. 


Partial       performance,      compelled 

when,  1013. 
In  winding  up,  1015. 


CHAPTER  VI.     ACTIONS  WITH  THIRD  PERSONS. 


Parties  Plaintiff. 

On  sealed  contracts,  1016. 

On  mercantile  paper,  1017. 

On  other  simple  contracts,  1018. 

On  contract  with  one  partner,  1019- 
1021.  . 

Dormant  partners  as  co-plaintiffs, 
1033. 

Nominal  partners  as  co-plaintiffs, 
1033. 

Assignments  between  partners,  1024. 

Substitution  of  creditors;  new  firm 
suing  on  contract  of  old,  1035. 

After  bankruptcy  of  one  partner, 
1026. 

Non-consenting  partner  made  de- 
fendant. 1037. 

Too  numerous  parties,  1028. 

Amendments,  1029. 

Torts  against  Partners. 

In  general,  1030. 

Joint  action  for  libel  on  the  fii*m, 

1031. 
Separate  action  for  libel  on  the  firm, 

1032. 
Joint  action  for  libel  on  one,  1033. 
Other  torts,  1034. 

Disqualification  of  Plaintiff. 

In  general,  1035. 

Authorities  sustaining  the  disqualifi- 
cation, 1037. 


Authorities  refusing  to    apply  the 
doctrine,  1038. 

Defrauded  partner  cannot  sue  alone, 
1039. 

Disqualification  as  to  others  than  de- 
fendant, 1040. 

Transaction  treated  as  a  sale,  1043. 

Doctrine  not  applicable  to  counter- 
claims, 1043. 

Action  sustained  when  guilty  part- 
ner not  party,  1044. 

Creditor  not  disqualified,  1045. 

Creditor's  innocence,  1046. 

Bank  paying  individual  note  with 
firm's  money,  1047. 

Payment  in  money  different    from 
assets,  1048. 

Defendants. 

All  must  be  joined,  1049. 
Non-joinder,  how  objected  to,  1050. 
Statute  making  joint  and    several, 

1051. 
Dormant  partners,  1052. 
judgment    against     ostensible 

alone,  1053. 
Nominal  partner,  1054. 
Death  pendente  lite,  1055. 
Amendments,  1056. 
Appeal  and  error,  1057. 
Removal    to    United    States    court, 

1058. 


CHAPTER  VII.     ACTIONS  IN  THE  FIRM  NAME. 

In  general,  1059.  Practice,  1061. 

Individual  using  a  firm  name,  1060.    Summons,  1063. 

xxi 


Vol.  II. 


CONTENTS. 


Part  IV,  Ch.  li. 


Judgment,  1063. 
Execution,  1064. 


Cured  by  amendment  or  by  judg- 
ment and  verdict,  1065. 
Action  on  the  judgment,  1066. 


CHAPTER  VIII.     PLEADING. 


Averment  of  plaintiff's  partnership, 
1087. 

Plaintiff's  averment  of  defendant's 
partnership,  1068. 

Averment  of  title  through  a  partner- 
ship, 1070. 

Defense  of  one  inuring  to  all,  1071. 

Denials  of  plaintiff's  partnership, 
1072. 

Denials  of  execution  of  instrument, 
10:3. 

Denials  of  defendant's  partnership, 
1074. 

Amendments,  1075. 

Set-off. 

Between  the  firm  and  its  debtor  or 
creditor,  1076. 

By  or  against  surviving  partner,  1077. 

Between  third  persons  and  the  part- 
ners, 1078. 

I.  Where  the  partnership  is  creditor 
and  one  partner  is  debtor,  1079. 

assent  of  copartners,  1080. 

II.  Where  the  partnership  is  debtor 
and  one  partner  is  creditor,  1081. 


Actual  and  not  ostensible  rights  re- 
garded, 1082. 
Dormant  partners,  1083. 
Insolvency  or  non-residence,  1084. 

Summons  on  Part. 

In  general,  1085. 

In  many  jurisdictions  now  by  stat- 
ute, 1086. 

Entry  of  appearance  for  the  firm, 
1088. 

Extra-territorial  validity  of  judg- 
ment, 1089. 

Appearance  before  dissolution  to 
bind  copartner  personally,  1090. 

Service  upon  one  after  dissolution, 
1091. 

Power  to  enter  appearance  after  dis- 
solution, 1092. 

Judgment  against  Part. 

In  genei'al,  1093. 

Where  some  are  not  liable,  1094. 

If  all  liable,  1095. 


CHAPTER  IX.    EXECUTION  AGAINST  ONE. 


In  general,  1097. 

What  is  the  interest  to  be  taken,  1098. 

This  chapter  applies  to  firm  creditor 

pursuing  single  partner,  1099. 
How  to  reach  the  interest;   earlier 

legal  theory,  1100. 
Levy  on  specific  chattels  less  than 

whole,  1101. 
Title  not  affected,  1102. 
Garnishment  of  debtors  of  firm,  1103. 
Surviving  partner,  1104. 
Levy  by  taking  exclusive  possession, 

1105. 


Levy  by  a  constructive  seizure  only, 
in  some  states,  1106. 

Sale  of  more  than  debtor's  interest  a 
trespass,  1108. 

Relief  by  injunction  until  account- 
ing had,  1109. 

Purchaser's  rights,  1111. 

Consequence  of  above  doctrine,  1112. 

Garnishing  the  other  partner,  1113. 

Priorities  between  the  levy  and  iMer 
levies  for  firm  debts,  1114. 

Dormant  partnership,  1116. 


xxu 


Vol.  II.  CONTENTS.  Part  IV,  Ch.  XI. 

CHAPTER  X.     ATTACHMENT  AGAINST  THE   FIRM. 

Grounds,  1117.  Partners  as  Garnishees. 

On  property  of  one  for  firm  debt,  Service  upon  part  only,  1127. 

1118. 

Act  of  oue  partner  as  a  ground,  1120.  Execution  of  Judgment  against 

Bond,  1121.  ^"'^• 

Miscellaneous,  1122.  Property  of  each  liable  to  execution, 

Affidavit,  1123.  '  ^^^^• 

Misnomer,  1124.  Exemption  and  Homestead  Claims, 

1131-1134. 

CHAPTER  XI.     EVIDENCE  OF  PARTNERSHIP. 

Whether  a  question  of  law  or  fact.    Reputation,  1155. 

1135.  notoriety  as  evidence  of  notice, 

Inter  se,  1136.  1157. 

By  Plaintiffs  or  Defendants,  of   ^P^'^^^f '      ,  .', 

Themselves.  ^'"^^  *^  ^^'"^^  P'^^^^   "^^^  '^^^^*^' 

1159. 
By  admission  of  opposite  party,  1142.    p^.j^j.  judgment  as  evidence,  1160. 
In  disproof  of  alleged  partnership, 

1^^^'  Witnesses. 

By  Plaintiffs  or  Defendants,  of  Except  where  statutes  have  removed 

THE  Opposite  Party.  disqualification  for  interest,  1162. 

Admission,  1146.  Matters  outside  the  firm,  1164. 

Using  a  firm  name,  1147.  Removal  of  interest,  1165. 

Vagueness    of    circumstantial    evi-  As  a  witness  for  the  opposite  party, 

dence,  1149.  1168. 

Res  gestce,  ll5i.  After  death  of  a  partner,  1170. 

Admission    good    against    himself.  Between  partners,  1171. 

1154. 

APPENDIX. 

Forms  of    clauses  in  articles,  page  Release  and  assignment  from  retir- 

1149.  ing  to  continuing    partner,   page 

Agreement  to    continue    or   renew  1164. 
partnership,  page  1163. 

INDEX,  page  1167. 

xxiii 


TABLE  OF  CASES. 


A. 

ADat  V.  Penny,   19  La.  Ann. 

289,  ....  174,  570 
Abbot  V.  Johnson,   33  N.   H. 

9,    -        -        -        213,  434,  435,  533, 

574,  591 

V.  Smith,  2  W.  Bl.  947,     -     457, 

1130 
Abbott  V.  Dexter,  6  Cash.  108,      336 

V.  Jackson,  43  Ark.  212,  -      136 

V.  Omaha  Smelting  Co.  4 

Neb.  416,        -        ...  5 

V.  Pearson,  130  Mass.  191,     981, 

1147 
Abel  V.  Love,  17  Cal.  233,        -        59 

V.  Sutton,  3  Esp.  108,     606,  685, 

690,  691,  695 
A  bell.  Ex  parte,  4  Ves.  837,  -  830 
Abernathy  v.  Latimore,  19  Oh. 

286, 1065 

V.  Moses,  73  Ala.  381,        -      293 

Abpt  V.  Miller,  5  Jones  (N.  Ca.), 

L.  32,  -  -  -  -  510,  512 
Abraham  v.  Hall,  59  Ala.  386,  467 
Abrahams  v.    Myers,   40    Md. 

499,  ....  572,  597 
Ackerman  v.    King,   29    Tex. 

291, 643 

Ackley  v.  Staehlin,  56  Mo.  558,    1038, 

1042,  1046 
V.  Winkelmeyer,   56  Mo. 

563,  ....      557,  607 

Acree  v.    Commonwealth,    13 

Bush,  353,  ....  488 
Adam  v.  Townend,  14  Q.  B.  D. 

103, 1088 

Adams,  Re,  29  Fed.  Rep.  843,       453a 


Adams,  Ex  parte,   3  Mont.  & 
Ayr.  157,        -        -        -        .      842 

,  Ex  parte,  1  Rose,  305,     830,  843 

V.    Adams,    7  Abb.    New 

Cas.  292,  -        -       670,  671,  672 

V.  Bingley,  1  M.  &  W.  193,       679 

V.  Brown,  16  Oh.  St.  75,       108 

V.  Brownson,  1  Tyler  (Vt.), 

452, 331 

V.  Carter,  53  Ga.  160,       -        61 


V.  Curtis,  4  Lansing,  164,       141 

V.  Funk,  53  111.  219,  47,  879, 

887,  893,  979 

V.  Gaubert,  69  111.  585,     -      908 

V.  Gordon,  98  111.  598,       -      818 

V.  Hackett,  7  Cal.  157,      -      935 

V.  Hackett,  27  N.  H.  289 

(59  Am.  Dec.  376),  -  719,  723 
V.  Kable,    6  B.    Mon.  384 

(44  Am.  Dec.  772),         795,  917,  931 

V.  May,  27  Fed.  Rep,  907,   1019, 

1058 

V.  Pugh,  7  Cal.  150,  -        88 

V.  Ruggles,  17  Kan.  237,     360. 

361 

V.  Sturges,  55  III.  468,      477,  848 

V.  Ward.  26  Ark.  135,      718,  737 

V.  Wood,  9  Cal.  31,  -     1006 

V.  Woods,  8  Cal.  152,        -      935 

Adams  Bank  v,  Jones,  16  Pick. 

574,  -  .  -  -  347,  368 
V.  Rice,  2  Allen,  480,  56,  81 


Adansonia  Co.,  Re,  L.  R.  9  Ch. 

App.  635,  -  ...  440 
Addams  v.  Tutton,  39  Pa.  St. 

447, 873 

Addison  v.  Burkmyer,  4Sandf. 

Cli.  498,  ....      453 

XXV 


Ade.] 


TABLE  OF  CASES. 


[All. 


Adee  v.  Cornell,  93  N.  Y.  573 
(aff.  25  Hun,  78),    -        -        -      339 

V.  Demorest,  54  Barb.  433,       372 

Adickes   v.  Lovviy,  15   S.  Ca. 

128, 825 

Adkins  v.  Arthur,  33  Tex.  431,     507, 

1063 

^tna  Ins.  Co.  v.  Peck,  28  Vt. 
93, 505 

V.  Wires,  28  Vt.  93,  -        -      533 

Agace,  Ex  parte,  2  Cox,   312,     333, 

1151 

Agawam    Bank   v.    Morris,   4 
Cush.  99,        -        -        -     453,  453a 

Ah  Lep  V.  Gong  Choy,  13  Ore- 
gon, 205,         -      328,  443,  446,  1094 

Aicardi  v.  Strang,  38  Ala.  326,     1167 

Aiken  v.  Ogilvie,  12  La.  Ann. 
353,         ...        -       764,976 

V.  Thompson,    43    Iowa, 

506, 534 

Airey   v.    Borhani,    29    Beav. 

620,  769,  773,  780,  796,  797,  809 

Ajacio  V.  Forbes,  14  Moo.  P.  C. 

160, 1021 

Akliurst  V.  Jackson,  1  Swanst. 
85, 807 

Alabama    Coal  Mines   Co.    v. 
Brainard,  35  Ala.  476,  194,  401 

Alabama  Fertilizer  Co.  v.  Rey- 
nolds &  Lee,  79  Ala.  497,      -     214, 
257,  319,  322,  323,  373,  459 

Albee  v.  Fairbanks,  10  Vt.  314,        59 

V.  Wachter,   74   111.    173,       978 

Albers  v.  Wilkinson,  6  Gill  & 

J.  358,  -  -  -  .  414,  1167 
Albion  L.  Ass.  Soc,  Re,  16  Ch. 

D.  83, 181 

Albretcht  v.  Sussmann,  2  Ves. 

&B.  323,  ....  110 
Albright  v.  Voorhies,  36  Hun, 

437,  ....  639,633 
Alcott  V.  Strong,  9  Cush.  323,     497, 

1151 
Alder  v.  Fouracre,  3  Swanst. 

489,  ....       305,  990 

Alderson  v.  Clay,  1  Stark.  405,     1140 


Alderson  v.  Pope,  1  Camp.  404,       91, 

323 
Aid  rich    v.     Lewis,    60    Miss. 

229,  ....      854,890 
V.  Wallace,  8  Dana  (Ky. ), 


287  (33  Am.  Dec.  495),  - 
Alexander    v.    Alexander,    12 

La.  Ann.  588,        ... 
V.  Barker,  2  Cr.  &  J.  133; 


1101 

885 
1020 


2  Tyrw.  140,  - 

—  V.  Coulter,  2  S.  &  R.  494,       716 

—  V.    Crosthwaite,    44    111. 

1167 

476 


359, 

V.  Georgia,  56  Ga.  478,     - 

V.   Gorman  (R.  I.),  7  Atl. 


832 


Rep.  243, 

V.  Jacoby,  23  Oh.  St.  358,     1034 

V.  Kimbro,  49  Miss.   529,     287, 

301 

V.  Lewis,  47  Tex.    481,      -     580, 

598,  599,  601,  603,  610 
V.  Lewis,  51  Tex.  578,      -      598 

V.  McGinn,  3  Watts,  220,     445, 

1052 

V.  Morgan,  31  Oh.  St.  546,       138 

V.  Stern,  41  Tex.  193,       -    1086, 

1091 
Alexandria,  Mayor  of,  v.  Pat- 
ten, 4  Cranch,  317,        -        -      489 
Alfele  V.   Wright,  17  Oh.    St. 

238, 277 

Algen  V.  Boston  &  Maine  R. 
R.  132  Mass.  423  (6  Am.  & 
Eug.  R.  R.  Cas.  562),      -  57,  66 

Allan  V.  Garven,  4  Up.  Can.  Q. 

B.  242, 861 

Allen  V.  Anderson,  13  111.  App. 

451, 855 

V.  Atchison,  26  Tex.  616,      510, 

646 

v.  Blanchard,  9  Cow.  631,      728, 

1166 

V.  Brown,  39  Iowa,  330,       155 

V.   Center  Valley  Co.    21 

Conn.  130  (54  Am.  Dec.  333),      560, 

564.  824 
V.  Cheever,  61  N.  H.  32,    -      415 


XXVI 


All.] 


TABLE  OF  CASES. 


[And. 


Allen  V.  Coit,  6  Hill,  318,  -    439,  440, 

441,  978 
V.  Davis,  13  Ark.   28,         -        61 

V.  Duun,  15  Me.  292    (33 

Am.  Dec.  614),       -        -        91,  104 

V.  Erie  City  Bank,  57  Pa. 

St.  129,  -        -        -        -      903 

V.    Farrington,  2  Sneed, 

526, 381 

V.   Frunet  Min.  &  Smelt. 

Co.  73  Mo.  688,        -        -        -      498 

V.  Grissom,  90  N.  Ca.  90,      551, 

557,  824 

V.  Hawley,  6  Fla,  142  (63 

Am.  Dec.  198),        -        70,  660,  974, 

820,  1007 

V.  Hill,  16  Cal.  113,     -    715,  726, 

731 

V.  Kilbre,  4  Madd.  464,     -      754 

V.  Maddox,  40  Iowa,  124,     1081 

V.  Nat'l  Bank,  6  Lea,  558,     731, 

739 

V.  Owens,  2  Spears  (S.  Ca.), 

170,  -        -        331,  447,  457,  524 

V.  Eostain,    11   S.    &   R. 

362, 1155 

V.  Russell  (Louisville  Ch. 

Ct.  1863),  3  Am.    Law  Reg. 

N.  S.  361,        -        -       -        -      582 

V.    St.    Louis   Bank,    120 

U.  S.  20,         -        -        -   1041,  1043 

V.  State,  34  Tex.  330,        -      488 

V.    Taylor,    39  L.  J.    Ch. 

627 ;   22   L.  T.  651 ;  18  W.  R. 

888  (afld.  on  appeal,  19  W.  R. 

35), 

V.  Taylor,  24  L.  T.  249;  19 


677 
677 


W.  R.  556,      - 
V.  Wells,  23  Pick.  450  (33 

Am.  Dec.  757),       -        -      747,  847 
V.    White,   Minor  (Ala.), 

365, 1023 

V.  Withrow,  110  U.  S.  119,       285 

V.  Woousocket  Co.  11  R. 

I.  288,      -        134,  583,  657,  943,  945 
AUfrey  v.  Allfrey,  1  Mac.  &  G. 

87, 


964  , 
xxvii 


Allison  V.  Davidson,  1  Dev.  & 

Bat.  Eq.  46,  -  -  -  -  716 
V.  Davidson,  3  Dev.  Eq. 

79,  455,  541,  760,  761,  822,  930,  971 
Alsop  V.  Mather,  8  Conn.  584 

(21  Am.  Dec.  703),  -  53,  750 
Alspaugh  V.  Mathews,  4  Sneed, 

216, 261 

Alston  V.  Rowles,  13  Fla.  117,  -  Ihd 
V.  Sims,  24  L.  J.  Ch,   553 ; 

1  Jur.  N.  S.  458,  -  -  -  269 
Alvord  V.  Smith,  5  Pick.  233,  72,  74 
Ambler  v.  Bolton,  L.  R.  14  Eq. 

427,         ...        -       269,  974 

V.  Bradley,  6  Vt.  119,        -  43,  61 

V.  Whipple,  20  Wall.  546,     589, 

591,  592,  910 
Ambs  V.  Caspari,  13  Mo.  App. 

586,  ...  -  722,  724 
American   Bank  v.   Doolittle, 

14  Pick.  123,  ...  -  385 
American   Bank  Note   Co.   v. 

Edson,  56  Barb.  84 ;  1  Lans. 

388, 305 

American  Iron  Mountain  Co. 

V.  Evans,  27  Mo.  552,  -  700,  701 
American  Linen  Thread  Co.  v. 

Wortendyke,  24  N.  Y.  550,  -  623 
Amidown   v.    Osgood,  24  Vt. 

278  (58  Am.  Dec.  171),  -  613,  628 
Amsinck  v.  Bean,  23  AVall.  395,  311, 
583,  753,  754,  836,  838,  843,  845 
Anderson     v.    Ackerman,    88 

Ind.  481,  -        -        -      715,  739 

V.  Anderson,  25  Beav.  190,       591 

V.  Beebe,  22  Kan.  768,     739,  908 

V.  Chenney,  51  Ga.  372     -     1113 

V.  Henshaw,  2  Day,  272,  -      524 

V.  Holmes,  14  S.  Ca.  162,  -     1025 

V.  Howard,  49  Ga.  313,     -      646 

V.  Lemon,  8  N.  Y.  236  (re- 
versing 4  Sandf.  552),    -        -      305 

v.  Levan,  1  Watts  &  S.  334,     420, 

535 

V.  Maltby,  2  Ves.  Jr.  244,     562, 

566 
V.  Martindale,  1  East,  497,     I0l6 


And.] 


TABLE  OF  CASES. 


[Arm. 


Anderson  v.    Norton,    15   Lea 

(Tenn.),  14,     195,  565,  698,  726,  732, 

1152 

V.  Pollard,  62  Ga.  46,       747,  750 

V.  Powell,  44  Iowa,  20,     -      121 

V.  Robertson,  32  Miss.  241,       880 

V.  Snow,  9  Ala.  247,  -    1158 

V.  Tarpley,  6  Sm.  &  Mar. 

507.  ....    543,  1072 
V.  Taylor,  2  Ired.  Eq.  (N. 

Ca.)420,  -        -       770,771,775 
V.    Tompkins,    1   Btock. 

456,         -        -        340,  403,  418,  583 
V.  Wanzer,  5  How.  (Miss.) 

587  (37  Am.  Dec.  170),  -     331,  1127 

V.  White,  39  Mich.  130,     -     1094 

V,  Whitlock,  2  Bush,  398,      114, 

123,  790 
Andrcss  v.  Miller,  15  Pa.   St. 

316, 

Andrew,  Succession  of,  16  La. 

Ann.  197,         ...        - 
Andrews,  Ex  parte,  25  Ch.   D. 

505, 

V,  Alexander,  L.  R.  8  Eq. 


569 
978 
836 

75 


176, 

—  V.    Allen,   9  Serg.  &  R. 

241,         -        -        -       735,  858,  860 

—  V.  Brown,  21  Ala.  437  (50 
Am.  Dec.  252),       -      288,  290,  293, 

294,  719 

—  V.  Congar  (S.  C.  U.  S. 
1881),  20  Am.  Law  Reg.  (N. 
S.)328;  Law.  Coop.  Bk.  26, 

p.  90,       -        -        321,  322,  350,  370 

—  V.  Ennis,  16  Tex.,  45,        -     1085 

—  V.  Garstin,  10  C.  B.  (N.  S.) 

444, 595 

—  V.  Keith,  34  Ala.  722,       -  1105, 

1111 

—  V.  Mann,  31  Miss.  322,      -      551 

—  V.  Planters'  Bank,  7  Sm. 


&  Mar.  (Miss.)  192  (45  Am. 
Dec.  300),        -        -       349,  426,  427 
—  V.  Wall,  3  How.  568,        -      908 


Angier  v.  Webster,   14  Allen, 
211, 


678 
xxviu 


Anglesea  Colliery  Co.,  Re,  L.  R. 

2  Eq.  371 ;  1  Ch.  App.  555,  -  813 
Anonymous,  Z,  v.  X.  2  Kay  & 

J.  441,     -        -        -        .      581,  991 

,  12  Mod.  446,     ...      381 

,  2  Ves.  Sr.  629,  -     870,  1010 

,  1  Bank.  Reg.  187,     -        -    1131 

,  2  Hayw.  (N.  Ca.)  99,        -      414 

:; ,  Tayl.  (N.  Ca.)  113,    -        -      414 

V.  Layfield,  Holt,  434,      -      384 

V.  Layfield,  1  Salk,  292,    -     325, 

431,  437 
An  sly  n  v.  Frank,  11  Mo.  App. 

598, 1159 

Anthony  v.    Butler,    13   Pet. 

423,         -        -        -       299,  416,  417 

V.  Wheatons,  7  R.  I.  490,      323, 

424 
Apperly  v.  Page,  1  Phil.  779,  -  914 
Appleby  v.    Brown,  24  N.  Y. 

143, 899 

Appleton  V.    Smith,    24  Wis. 

331, 33 

Apsey,  Ex  parte,  3  Bro.  C.  C. 

2G5, 481 

Arbuckle  v.  Taylor,    3  Dowl. 

160,  ....       466,  467 

Archer  v.  Walker,  38  Ind.  472,  759 
Arden  v.  Tucker,  4  B.  &  Aid. 

817, 1019 

Ardley  v.    Russell,  1   Browne 

(Pa.  Com.  PI.  1810),  145,  -  1072 
Arguimbo  v.    Hillier,  17  Jones 

&  Sp.  253,  ....  26 
Arick,   Succession  of,   22  La. 

Ann.  501,  -  -  -  -  365 
Armand  v.  Burrum,  69  Ga.  758,  1113 
Armistead  v.    Butler,  1   Hen. 

(Va.)  176,  -  -  -  -  410 
Armitage  v.  Winterbottom,  1 

M.  &  G.  130,  -  -  -  -  409 
Armsby   v.  Farnam,  16  Pick. 

318,  ....     981,  1025 

Armstrong     v.     Crocker,     10 

Gray,  269,       ....      gee 

v.  Fahnestock,  19  Md.  58,      541, 

548,  551,  560,  585 


Arm.] 


TABLE  OF  CASES. 


[Atw. 


Armstrong  v.  Hiissey,  12  S.  & 

R.  315, COS 

V.  Kleinhaus,  82  Ky.  303,      674 

V.  Robinson,  5  Gill  &  J. 

412,     191,  336,  431, 1016,  1018,  1049, 

1072 
Arnett  v.  Finney,  41  N.  J.  Eq. 

147,  ....  942,  952 
Arnold  v.  Angell,  62  N.  Y.  508,        47 

V.  Arnold,  90  N.  Y.  580,     859, 

930 

V.  Brown,  24  Pick.  89  (35 

Am.  Dec.  296),      320,  341,  403,  405, 
411,  583,  584,  587,  589 

V,  Camp,   12  Johns.  409,       527 

V.     Hamer,     1     Freem. 

(Miss.)  Ch.  509,      -       -       825,  832 

V.  Kreutzer,  67  Iowa,  214,      676 

V.  Morris,  7  Daly,  498,     403,  406, 

1052 

V.  Nichols,  64  N.  Y.  117,     504, 

510,  514 
V.  Stevenson,  2  Nev.  234,       299 

V.   Wainwright,    6  Minn. 

358,  -  -  281,  290,  291,  822 
Arthur  v.  Weston,  22  Mo.  378,  296 
Arton  V.  Booth,  4  Moo.  192,  383,  684 
Arundell  v.  Bell,  52  L.  J.  Ch. 

537;  49  L.  T.  345;  31  W.  R. 

477, 668 

Asbury  v.  Flesher,  11  Mo.  610,     446, 

448,  610 

V.  Mcintosh,  20  Mo.  278,      734 

Ash  V.  Guie,  97  Pa,  St.  493  (39 

Am.  Rep.  818;  10  Am.  Law 

Rec.  278;  12  Reporter,  281),       75, 

1066 
Ashby  V.  Porter,  26  Gratt.  455,     825, 

828,  841 

V.  Shaw,  82  Mo.  76,       29,  37,  62 

Ashhurst  v.  Mason,  L.  R.  20 

Eq.  225,  -        -        -       119,  761 

Askew  V.   Odenheimer,   Bald. 

C.  C.  380,       -        -        .        -      983 

V.  Poyas,  2  Desaus.    145,       966 

V.  Springer,  111  111.    662,     770, 

775,  779,  945,  949,  976 


Aspinall  v.  London  &  N.  W. 

R'y  Co.  11  Hare,  325,     -        -      584 
Aspinwall  v.  Williams,  1  Oh. 

84, 201 

Astle  V.  Wright,  23  Beav.  77,     805, 

800,  809 
Astley  V.  Weldon,  2  B.   &  P. 

346, 250 

Atchison   Sav.  Bank  v.  Tem- 
plar, 26  Fed.  Rep.  580,  -        -     1092 
Atchison,  Topeka  &  Santa  Fe 

R.    R.    V.    Roach,    35    Kan. 

740, 66 

Atherton  v.  Tilton,  44  N.  H. 

451, 36,  43 

Atkins  V.  Hunt,  14  N.  H.  205,    72,  76, 

81,  87 
V.     Prescott,   10  N.    H. 

120,       -        -        -     1103,  1127,  1128 

V.  Saxton,  77  N.  Y.   195,     561, 

1108 

V.  Tredgold,  2  B.  &  C.  25,     704, 

746 
Atkinson  v.  Cash,  79  111.  53,  -  938 
Atlanta  v.  Dooby,  74  Ga.  702,     725, 

1029 
Atlantic  State  Bank  v.  Savery, 

82  N.  Y.  291  (affg.  18  Hun, 

36),  -        -        -      347,  349,  352,   394 
Attaway  v.  Third  Nat'l  Bank, 

15  Mo.  App.  577,     -        -        -      127 
Attorney-General    v.    Burges, 

Bunb.  223,       -        -        -      468,  471 
V.  Hubbuck,  10  Q.   B.  D. 

473;  13  id.  275,       -        -        -      297 
V.  State   Bank,  1   Dev.  & 

Bat.  Eq.  545,  -        -        -        -      916 

V.  Strangforth,  Bunb.  97,       468 

V.  Weekes,  Bunb.  223,      -      468 

Attwood  V.  Rattenbury,  6  J.  B. 

Moore,  579,     -        -        -        -    1067 
Atwater  v.    Fowler,    1    Edw. 

Ch.  417,  -        -        -        -      952,  963 
Atwood  V.   Impson,   20  N.  J. 

Eq.  150,  -        -        -        -        -    1109 
V.    Lockhart,    4  McLean, 

350,  ....      446,  507 


XXIX 


Atw.] 


TABLE  OF  CASES. 


[Bai. 


Atwood  V.  Maude,  L.  R.  3  Ch. 

App.  369,        -      594,  805,   806,  809 

V.  Meredith,  37  Miss.   635,     136, 

1101,  1105,  1113,  115^,  1157,  1158 
Aubrey  v.  Frieze,  59  Ala,  587,  61 

Auburn     Exchange    Bank  v. 

Fitch,  48  Barb.  344,  -  -  569 
Augsbury  v.   Flower,  68  N.  Y. 

619, 963 

Augusta  Wine  Co.   v.   Weip- 

pert,  14  Mo.  App.  483,  -      317,  437, 

447 
Auld  V.  Butcher,  2  Kan.  135,     956, 

966 
Aultman  v.  Fuller,  53  Iowa,  60,  26 
Aultman  &  Taylor  Mfg.  Co.  v. 

Webber,  4  111.  App.  437,  395,  1073 
Austen  v.  Boys,  24  Beav.  598 

(affd.  in  S.  C.  3  DeG.  &  J.  62C),     216 

661,  668 
Austin  V.   Bostwick,    9  Conn. 

496  (25  Am.  Dec.  43),     -        -      701 

V.  Cummings,  10  Vt.  26,       641 

V.  Holland,   69  N.  Y.   571 

(25  Am.  Rep.  246),         -       614,  616 

' V.  Jackson,  11  Ch.  D.  943,      987 

V.   Seligmau,   31  Blatchf. 

506 ;  18  Fed.  Rep.  519,  -        -      559 

V.  Thompson,  45  N.    H. 

113,  -        -        -        -    -    -  64,  75 

V.   Vandermark,   4  Hill, 

359, 353 

V.  Vaughan,  14  La.  Ann. 

43, 849,  850 

V.  Walsh,  3  Mass.  401,      -    1034 

V.  Williams,  3  Oh.  61,     200,  201, 

453,  1153 
Autenreith  v.  Hessenbauer,  43 

Cal.  356,  ....      754 

Autrey  v.  Frieze,  59  Ala.  587,  26,  38 
Aver  ill  v.  Loucks,  6  Barb.  19,      282, 

291,  535 

V.  Loucks,  6  Barb.  470,     -     282, 

291,  569,  842,  848 

V.  Lyman,  18  Pick.  346,    384,  518 

Avery  v.  Lauve,   1  La.   Ann. 

457, 88 


Aveiy  V.  Myers,  60  Miss.  367,        53 
V.  Rowell,  59  Wis.  82,      -      349 


Ayer  v.  Ayer,  41  Vt.  346,      326,  335, 

585,  589 
Ayrault    v.     Chamberlin,     26 

Barb.  83,  -  -  -  -  507 
Ayres  v.  Chicago,  Rock  Isl.  & 

Pac.  R.  R.  53  Iowa,  478,      711,  730 

V.  Gallup,  44  Mich.  13,     -      503 

Azelv.  Betz,   3  E.    D.  Smith, 

188, 374 

B. 

Babb  V.   Reed,  5  Rawle,    151 

(28  Am.  Dec.  650),  -        -        75 

Babcock  v.  Hermance,  48  N.  Y. 

683, 967 

V.  Stewart,  58  Pa.  St.  179,      507 

V.  Stone,  3  McLean,  172,  -      359 

Bach  V.  State  Ins.  Co.  64  Iowa, 

595,  ....  686,  687 
Bachia  v.  Ritchie,  51  N.  Y.  677,  597 
Backhouse  v.  Charlton,  8  Ch.D, 

414, 726 

V.  Hall,  6  Best  &  Sm.  507 

(6  N.  R.  Q.  B.  98),  -        -      653 

Backus  V.  Coyne,  35  Mich,  5,  -      336 

V.  Fobes,  20  N.  Y.  204,     505,  523 

V.  Taylor,  84  Ind.  504,       -      618 

Bacon  v.  Cannon,  2  Houst.  47,        70 

V.  Hutchings,  5  Bush,  595,     205, 

1167 
Badeley  v.  Consolidated  Bank, 

34  Ch.  D.  536,  ...  50 
Badger  v.  Daenieke,  56  Wis. 

678,  -  -      437,  490,  1019 

Baer  V.  Leppert,  12  Hun,  516,  399 
Bagaley,    The  Wm.    5    Wall. 

377,  ...  70,  401,  582 
Bagley  v.  Smith,  10  N.  Y,  489 

(61   Am,    Dec.  756;   s.  C.   19 

How.  Pr.  1),  -        -        -       578,  873 


Bagot  T,  Easton,  9  Ch.  D,  1, 


595 


Bagwell  v,  Bagwell,  72  Ga.  92,       828 
Bailey  v.  Bancker,  3  Hill,  188,       883 

V.  Clark,  6  Pick.  373,     47,  56,  57, 

333,  565 


XXX 


Bai.] 


TABLE  OF  CASES. 


[Ban. 


Bailey  v.  Ford.  13  Sim.  495,     593,  977 

V.  Kennedy,  2  Del.  Cli.  12,       825 

V.  Macaulay,  19  L.  J.  Q.  B. 

73, 89 

V.  Moore,  25  111.  347.         -      904 

V.  Starke,  6  Ark.  191,        -      874 

Baird's  Case,  L.  R.  5  Ch.  App. 

725,         -        .        -         73,  187,  602 
Baird  v,  Baird,  1  Dev.  &  Bat. 

(N.  Ca.)  Eq.  524,     285,  910,  948,  976 

V.  Cochran,  4  S.  &  R.  397,      347 

V.  Planque,  1  F.  &  F.  344,        91 

Baker's  Appeal.  21   Fa.  St.    76     551, 

(59  Am.  Dec.  752),  551,  556 

Baker  v.  Casey,  19  Grant's  Ch. 

(Up.  Can.)  537,       -        -        -        70 

V.  Charlton,  Feake,  80,    107,  196 

V.    Dawbarn,    19    Grant's 

Ch.  (Up.  Can.)  113,      825,  828,  839, 

845 
V.   Finney,  2  Pears.  (Pa.) 

177, 847 

V.  Jewell,  6  Mass.  460,      -     1024 

V.  Mayo,  129  Mass.  517,     785,  788 

V.  Nachtrieb,  19  How.  126,        13 

V.  Napier,  19  Ga.  520,       -      447 

V.  Sheehan,  29  Minn.  235,     1131 

V.  Stackpoole,  9  Cow.  420 ; 

Lockvv.    Rev.    Cas.    389    (18 

Am.  Dec.  508),        -      495,  497,  700 

V.  Wimpee,  19  Ga.  87,      -      847 

Baldwin  v.  Bald,  48  N.  Y.  673,     629, 

682 

V.  Burrows,  47  N.  Y.  199,    65,  79 

V.  Johnson,   1  N.  J.   Eq. 

441,         -        -        295,  301,  680,  689 

V.  Leonard,  39  Vt.  260,     -      396 

V.  Richardson,  33  Tex.  16,     296, 

299,  416,  417 

V.  Tynes,  19  Abb.  Pr.  33,      339 

Ball  V.  Britton,  58  Tex.  57,      -      873 
V.    Duusterville,   4  T.   R. 

313,         ....       416,  418 
V.  Farley  (Ala.),  1  South. 

Rep,  253,        -        -        -       251,  645 
V.    Strohecker,    2    Spears 

(S.  Ca.  1844),  364,  -        -        -    1029 


Ball  V.  Watertown  F.  Ins.  Co. 

44  Mich.  137,  -  -  -  655 
Ballantine    v.    Frelinghuysen, 

38  N.  J.  Eq.  266,  282,  598,  601,  603 
Ballard  v.   Callison,  4  W.  Va. 

326,  -  577,  5S5,  756,  999,  1001 
Ballin  v.  Ferst,  55  Ga.  546,  -  195 
Ballou  V.  Spencer,  4  Cow.  163,  64 
Baltimore      F.     Ins.      Co.     v. 

McGowan,  16  Md.  45,  -  -  272 
Banchor  v.  Cilley,  38  Me.  553,  1136 
Banco  de  Portugal  v.  Waddell, 

11  Ch.  D.  317,  -  -  -  841 
Bankv.Galliott,  1  McMull.  209- 

(36  Am.  Dec.  256).  -        -      631,  694 

V.  Gray,  13  Lea  (Tenn.), 

459,  -        -        -        -      446,  507,  928 

V.  Green,  40  Oh.  St.  431,      523, 

527,  529,  694,  698 
V.  Hall,  35  Oh.  St.  158,       4,  6,  7 

V.   Harvey,  12  Mo.  App. 

588, 1046 

V.  Railroad   Co.    11  Wall. 

624,         158,  183,  184,  577,  585,  927, 

930.  931 

V.  Sawyer,  38  Oh.  St.  339,      184. 

185,  186,  281,  291,  295,  446,  1055 

V.  Smith,  26  W.  Va.  541,        8, 

563,  910,  1147 
V.   St.  Jos.    Lead   Co.   12 

Mo.  App.  587,  -  -  -  348 
Bank  of  Alexandria  v.  Mande- 

ville,  1  Cranch,  C.  C.  575,  -  157 
Bank    of    British    N.  Am.  v. 

Cuvillier,  14  Moo.  P.  C.  187,  655 
Bank  of  Chenango  v.  Osgood, 

4  Wend.  607.  -        -        385,  386 

Bank  of  Commerce  v.  Selden, 

3  Minn.  155,  -  -  -  347,  358 
Bank    of    Commonwealth    v. 

Mudgett,  44  N.  Y.  514  (affg. 

45  Barb.  663),        351,  360,  398,  448. 

613 
Bank  of  England,  2  Glyn  &  J. 

363, 382 

Bank  of  Kentucky  v.  Brook- 
ing, 3  Litt.  41,        -        -      323,  364 


ZXXl 


Ban.] 


TABLE  OF  CASES. 


[Bar, 


Bank   of  Louisville  v.  Hall,  8 
Bush,  673,       -        -       291,  297,  298 

Bank  of  Mobile  v.  Andrews,  3 
Sneed(Tenn.),  5J5,  -      570,697 

V.  Dunn,  67  Ala.  S81,        -      569 

Bank  of  JMontreal  v.  Page,  98 
111.  109,   -        424,  575,  609,  683,  695 

Bank  of  N.  Ca.  v.  Fowle,  4 
Jones,  Eq.  8,  -        184,  185,  586 

Bank  of  New  Orleans  v.  Mat- 
thews, 49  N.  Y.  12,        -        -      582 

Bank  of  N.  Y.  v.  Vanderhorst, 
32  N.  Y.  553,  -        -       691,  726 

Bank  of  N.  A.  v.  Embury,  21 
How.  Pr.  14,  -        -        -      334 

V.  McCall,  3  Binn.  338 ;  4 

id.  371,  373,    -       -        -       -      720 

Bank  of  Port  Gibson  v.  Baugh, 
9  Sui.  &  Mar.  290,        689,  693,  727, 

731 

Bank  of  Rochester  v.  Bowen, 

7  Wend.  158,  -  -  -  364 
V.  Moiiteath,    1   Den.   403 

(43  Am.  Dec.  681),         56,  195,  322, 

441,  443 
Bank  of  St.    Albans  v.   Gilli- 

land,  23  Wend.  311  (35  Am. 

Dec.  566),  -  -  -  348,  362 
Bank  of  St.  Marys  v.  St.  John, 

25  Ala.  566,  -  -  152,  153,  1023 
Bank  of  Scotland  v.  Christie, 

8  CI.  &  Fin.  214,  -  -  653,  656 
Bank  of  S.  Ca.  v.  Humphreys, 

1  McCord.  L.  888,  -       617,  694,  698 

Bank  of  Tennessee  v.  Saflfar- 
rans,  3  Humph.  597      349,  363,  364 

Bank  of  Toronto  v.  Nixon,  4 
Ont.  App.  346,       -        -        -      170 

Bank  of  U.  S.  v.  Broad  foot,  4 
McCord,  30,   -        -        -        -    1086 

Bank  of  Vergennes  v.  Cam- 
eron, 7  Barb.  143,  -        -        -      700 

Bank  of  Wilmington  v.  Al- 
mond, 1  Whart.  169,     -        -      519 

Bankhead  v.  Alio  way,  6  Cold. 
56,  -        -        -        317,  373,  438,  960 

Banks  v.  Allen,  26  Ga.  5G8,      -    1048 


Banks  v.  Bosler,  4  Bibb,  573,  -     1018 

V.  Gibson,  34  Beav.  566,  -     669, 

671,  673 

V.  Mitchell,  8  Yerg.  Ill,  -      900 

Banner  Tobacco  Co.   v.  Jeni- 
sou,  48  Mich.  459,        283,  317,  334, 

429 
Barber,  Ex  parte,  L.  R.  5  Ch. 
App.  687,        -        -        -      215,  954 

V.  Barber,  18  Ves.  2S6,      -      943 

V.  Barnes,  53  Cal.  650,     584,  589 

V.  Cazalis,  30  Cal.  93,        -        59 

V.  Gillson,  18  Nev.  89,      -      534 

V.  Hartford  B'k,  9  Conn. 

407,         -        -        -    719,  1103,  1104 
Barclay's  Appeal  (Pa.),  8  Atl. 

Rep.  169,        -        -        -        -      795 
Barclay  v.  Lucas,  3  Doug.  331 ; 

1  T.  R.  291n,  -        -        -      651 

— r-  V.  Phelps,  4  Met.  397,      -      835 
Barcroft  v.  Ha  worth,  39  Iowa, 

463,  101,  201,  205,  1151,  1154 

V.  Snodgrass,  1  Cold.  430,     338, 

403,  448,  726,  732,  740 
Bardwell  v.  Perry,  19  Vt.  293 
(47  Am.  Dec.  687).        824,  836,  828, 
832,  847,  848,  929 
Barfield  v.  Loughborough,  L. 

R.  8  Ch.  App.  1,     -        -        -      783 
Barfoot   v.    Goodall,  3  Camp. 

147, 633 

Barger  v.  Collins,  7  Har.  &  J. 

213. 958 

Barhydt  v.  Perry,  57  Iowa,  416,       569 
Baring's  Case.     See  Devayues 

V.  Noble. 
Baring  v.  Crafts,  9  Met.  380,     168, 
191,  201,  449,  525,  1154 

V.  Dix,  1  Cox,  313,     -        -      593 

V.  Lyman,  1  Story,  C.  C. 

396,        -        -        -        543,  883,  884 
Barker  v.  Allan,  5  H.  &  N.  61,       879 

V.  Ayers,  5  Md.  202,  -     1167 

V.  Blake,  11  Mass.  16,     518,  1081 

V.  Goodair,  11  Ves.  78,      -      754 

V,  Mann,  5  Bush,  673,      315,  323 

V.  Parker,  1  T.  R.  287,      -       51 


XXXll 


Bar.] 


TABLE  OF  CASES. 


[Bat. 


Barker  v.  Ricliardson,  1  Younge 

&J.  363,         ....      383 
V.  Watertown,  137  Mass. 

237, 177 

Barkley  v.  Tapp,  87  Ind.  25,     -     544, 

550,  585 
Barklie  v.   Scott,    1   Huds.  & 

Br.  83, 54 

Barlow    v.    Coggan,    1   Wash. 

T'y,  257,  ....      750 

V.  Reno,  1  Blackf.  253,     -      377 

V.  Wain  Wright,  23  Vt.  88 

(52  Am.  Dec.  79),    -        -      506,  508 
Barnard,  Re,  33  Ch.  D.  447,     -  453a, 

441 

V.  Lapeer,  6  Mich.  274,     331,  428 

Barnes  v.  Elinbinger,  1   Wis. 

56, 

V.  Jones,  91  Ind.  161, 

Barnett  v.  Smith,  17  Hi.  565.   - 
V.  Watson,  1  Wash.  (Va.) 

372, 

V.  Juday,  38  Ind.  86, 

V.  Smith,  17  111.  565, 


1067 
996 
650 

1093 
535 
650 
Barney  v.  Currier,  1   D.  Chip. 

315  (6  Am.  Dec.  739),    -        -      392 

V.  Earle,  20  Ala.  405,         -     1168 

V.  Smith,  4  Har.  &  J,  485 

(7  Am.  Dec.  679),  719,  733 

Barns  v.  Barrow,  61  N.  Y.  39,     650, 

1019 
Barrett,  Re,  2  Hughes,  444,     381,  382 

V.  I.  &  St.  lI  R.  R.  9  Mo. 

App.  226,        -        -        -        -        67 

V.  McKenzie,  24  Minn,  20,     928, 

1103,  1105,  1111 

V.  Russell,  45  Vt.  43,        323,  401 

V.  Smith,  17  111.  565,         -      104 

V.  Swann,  17  Me.  180  (22 

Am.  Dec.  233),  -  -  32,  361 
Barron  v.  MuUin,  21  Minn.  377,  1008 
Barrow,  Ex  parte,  2  Rose,  253,     164, 

167 
Barry  v.  Barry,  3  Cranch,  C.  C. 

120, 985 

V.  Briggs,  22  Mich.  201,   -     715, 

719,  726,  731,  999 


Barry  v.  Crowley,  4  Gill,  194,  397 
V.  Fisher,  8  Abb.  Pr.  (N. 

S.)  369;  39  How.  Pr.  521.      -    1103 

V.  Foyles,  1  Pet.  311,     454,  1068 

V.  Nesham,  3  C.  B.  641,    -        16 

Barstow  v.  Gray,  3  Me.  409,  -  1023 
Bartlett  v.  Jones,  2  Strob.  L. 

471  (49  Am.  Dec.  606),     43,  257,  258, 

260,  1110 

V.  Parks,  1  Cush.  83,       931,  932 

V.  Waring,  4  Ala.  688,      -      531 

Bartley  v,  Williams,   66  Pa. 

St.  329, 278 

Barton  v.   Hanson,   2   Taunt. 

49, 257,  446 

Bascom  v.  Young,  7  Mo.  1,  348,  370 
Basdell  v.  Souther,  6  Gray,  149,  216 
Bass,  Ex  parte,  36  L.  J.  Bkcy. 

39,  - 844 

Bass  V.  Emery,  74  Me.  338,      -      734 

V.  Estill,  50  Miss.  300,       -      848 

V.  Taylor,  34  Miss.  343,     680,  933 

Bassett  v.    Miller,     39    Mich. 

133,  ....  719,  723 
V.  Shepardson,   52  Mich. 

3, 588 

Bast's  Appeal,  70  Pa.  St.  301,      306, 

307,  793 
Batavia  Bank  v.   Tarbox,    38 

Hun,  57,  ....  655 
Batchelor  v.  Whitaker,  88  N. 

Ca.  350, 305 

Bate,  Ex  parte,  3  Deac.  358,  -  843 
V.  McDowell,  17  Jones  & 

Sp.  106,  ....  510.  518 
Bates  V.  Halliday,  3  Ind.  159,  -  1080 
Bateson  v.  Gosling,  L.  R.  4  C. 

P.  9, 386 

Battaille   v.    Battaille,    6    La. 

Ann.  682,  -  -  -  -  873 
Battle  V.  Street  (Tenn.),   3  S. 

W.  Rep.  384,  -  -  -  317 
Battley  v.  Lewis,  1  M.  &  G. 

155, 221 

Batty  V.   Adams    County,    16 

Neb.  44,  -  -  -  -  296,  299 
V.  McCundie,  3  C.  &  P.  203,      459 


XXXUl 


Bat.] 


TABLE  OF  CASES. 


[Bec. 


Batzer  v.  Batzer,  28  N.  J.  Eq. 

13G, 181 

Bauerman,  Ex  parte,  3  Dea.  476,  834 
Baugher  v.  Duphorn,    9   Gill, 

314, 390 

Baum  V.  Fryrear,  85  Mo.  151,  510, 

516,  519 
Bawden  v.  Howell,  3  Man.  & 

G.  G38, 1017 

Baxter,  Re,  18  Bankr.  Reg.  62,     841 
V.  Bell,   19  Hun,  367  (re- 
versed in  86  N.  Y.  195),  -      420 

V.  Bell,  86  N.  Y.  195,      420,  524, 

848 
V.   Buchanan,   3  Brewst. 

(Pa.)  435,        ....    1002 
V.  Clark,  4  Ired.  (N.  Ca.) 

L.  127,     ....       323,  445 
V.  Connoly,   1  Jac.  &  W. 

576, 657 

V.  Plunkett,  4  Houst.  450,       80, 

509 

V.  Rodman,  3  Pick,  435,      43,  59 

V.  West,  1  Drew.   &  Sm. 

173,         ....       209,  594 
Bayley  v.  Schofield,  1  M.  &  S. 

338, 238 

Bays  V.  Conner,  105  Ind.  415,       329, 
343,  371,  532,  534 
Beacannon  v.  Liebe,  11  Oregon, 

443  (19  Reporter,  183),    -      900,  904 
Beach    v.    Hay  ward,    10   Oh. 

455,         .       154,  715.  722,  723,  1083 
V.  Hotchkiss,  2  Conn.  425 ; 

id.  697,     ....       849,860 

V.  State  Bank,  2  Ind.  488,     349, 

352,  1441 

V.  Ollendorf,  1  Hilt.  41,     -    415 

Beacham  v.  Eckford,  2  Sandf. 

Ch.  116,  -        .        215.  786,  787,  788 
Beal    V.    Snedicor,    8    Porter 

(Ala.),  5-33,      -        -        -  1091,  1092 
Beale  v.  Caddick,  2  H.  &  N. 

328,  .        -        .       881,  498,  499 

V.  Mouls,  10  Q.  B.  976,     508,  51 1 

Beall  V.  Lowndes,  4  S.  Ca.  258,     107, 

108 


Beall  V.  Poole,  27  Md.  645,       85,  507, 
510,  511,  517,  1147 
Beals  V.  Sheldon,  4  Up.  Can.  Q. 

B.  (old  ser.)  L;02,     -        -        -      347 
Beam  v.  Baruum,  21  Conn.  200,    885, 

386,  887 

V.  Macomber,  38  Mich.  127,     304 

Beaman  v.   Whitney,   20   Me. 

413, 76,  296 

Bean  v.  Gregg,  7  Colorado,  493,    858, 

862 
Bearce  v.  Washburn,    43   Me. 

564, 35 

Beardsley   v.    Hall,    36  Conn. 

270  (4  Am.  Rep.  74),      -        .      705 

V.  Tappan,  1   Blatchf.  C. 

C.  588, 1031 

Beatson  v.  Harris,  60  N.  H.  83,       383 
Beatty  v,    Wray,    19    Pa.    St. 

516, 772 

Beaumont  v.  Boulther,  5  Ves. 

485;  7  id.  599,  -  -  .964 
V.  Meredith,  3  Ves.  &  B. 

180, 75 

Beauregard  v.  Case,   91  U.  S. 

134,  ....  81,  1081 
Beaver  v.  Lewis,  14  Ark.  138,  589 
Beck  V.  Kantorowicz,  3  K.  & 

J.  230, 912 

V.   Martin,  2  McMuU.  (S. 

Ca.)260,  ...  -  883 
Becker  v.  Boon,  61  N.  Y.  317,  336 
Becket  v.  Sterrett,  4  Blackf. 

499, 277 

Beckford    v.   Hill,    124    Mass. 

588,  ...        -    5':5,  1150 

Beckham  v.  Drake,  9  M.  &  W. 

79, 334,  1023 

V.  Peay,  1  Bailey,  121,      -      701 

V.  Peay,  2  Bailey,  L.  133,     383, 

1079 
Beckley  v.  Munson,  22  Conn. 

299,  .  .  i  -  .  629 
Beckwith  v.  Manton,  12  R.  L 

442,  ....     542,  1014 

V.   Talbot,  95  U.  S.  289; 

s.  c.  2  Colo.  639,    -        -  45,  62 


XXXIV 


Bed.] 


TABLE  OF  CASES. 


[Ben. 


Bedford   v.    Brutton,    1  Bing. 

N.  C.  399,  -  -  -  -  878 
V.   Deakia,   2   B.   &   Aid. 

210;  2  Stark.  178,  -  -  528,  533 
Beebe  v.  Rogers,  3  G.  Greene 

(Iowa),  319,  -  ...  440 
Beecher  v.  Busl),  45  Mich.  188 

(40  Am.  Rep.  4Go),       17,  23,  30,  45, 

59,  61 

V.  Stevens,  43  Conn.  587,     184, 

185,  557 
Beesley  v.  Lawrence,  11  Paige, 

581, 842 

Beevan  v.  Lewis,  1  Sm.  376,  -  1109 
Beitman  v.  McKenzie,  11  Ohio 

Weekly  Law  Bulletin,  272,  -  560 
Belcher  v.  Conner,  1  S.  Ca.  88,        2, 

127 

V.  Vundusen,  37  111.  281,  -      278 

V.  Whittemore,  134  Mass. 

330,  -  -  .  .  2G6,  300 
Belknap  v.  Cram,  11  Oh.  411,       543, 

560 
V.   Wendell,  1  Foster  (21 

N.  H.),  175,  ....  27 
Bellv.  Barker,  16  Gray,  62,     -      5l9 

V.  Ellis,  33  Cal.  620,  -      661 

V.   Faber,   1  Grant's  Cas. 

(Pa.)  31,  ...       347,  349 

V.  Hall,  5  N.  J.  Eq.  477,   -      534 

V.  Hare,  12  Heisk.  615,     -        43 

V.  Locke,  3  Paige,  75,        -      674 

V.  Morrison,  1  Pet.  351,    -      7o3 

V.  Newman,  5  Serg.  &  R. 

78, 827,  828 

V.  Norwood,  7  La.  95,       -      655 

V.  Thompson,  34  111.  529,       1165 

Bellairs  v.  Ebsworth,  3  Camp. 

53, 655 

Bellerville  Sav.  Bk.  v.  Wins- 
low,  30  Fed.  Rep.  488,  -  -  456 
Belote    V.     Wayne,     7    Yerg. 

(Tenn.)534,  -  -  -  -  703 
Belton  V.  Fisher,  44  111.  32,  722,  724 
Bemis  v.    Boston,    14    Allen, 

366, 177 


V.  Hoseley,  16  Gray,  63, 


Benchley  v.  Chapin,  10  Cash. 

173, 457 

Benedict  v.  Davis,  2  McLean, 

347, 91,  94 

V.  Thompson,  33  La,  Ann. 

196,  ....  329,  345 
Benjamin  v.  Covert,  47  Wis. 

375,  95,  97,  150,  608,  009,  1155, 

1156 

V.  Covert,  55  Wis.  157,    -  1155, 

1156 
Benners  v.  Harrison,  19  Barb. 

53,  -        -        -  -        -      150 

Bennet  v.   Marshall,    2    Miles 

(Pa.),  436,  -  -  -  380,  688 
Bennett's  Est.  13  Phila.  331,  -  336 
Bennett   v.  Buchan,  61  N.  Y. 

222  (modifies  s.  c.  53  Barb, 

578;  5  Abb.  Pr,  N,  S,  412); 

S,  C,  76  N.  Y.  386,         -        686,  687 

V.  Cad  well,  70  Pa.  St.  253,     420, 

537,  640 

V.  Dean,  35  Mich,  306,      -     1138 

District  Twp.  of   Colfax, 

53  Iowa,  689,  -        -        -      383 

V.  Frary,  55  Tex.  145,      .    1170 

V,  Holmes,  32  Ind.  108,     -     1159 

V.  Russell,  34  Mo.  524,      -     770, 

771,  777 
V,   Scott,  1    Cranch,  C,  C. 

389, 1019 

V,  Stickney,  17  Vt.    531,     1088 

V.    W^in field,    4     Heisk, 

(Tenn.)  440,    ....      141 

V,  Woolfolk,  15  Ga,  213,  -     115, 

121,  9(J7,  939 
Benninger  v.  Gall,   1  C.  S.  C. 

R.  331, 1028 

V.  Hess,  41   Oh.  St.  64,     -    322, 

328,  341,  342,  370,  448,  450,  451 
Benson  v.  Ela,  35  N.  H.  402,  -    558, 

719,  824,  828 
- —    V.    Hadfield,      4     Hare, 

32, 523 

V,  Ketcham,  14  Md,  331,        43 

V.  Morgan,  50  Mich.  78,     -       141 

V.  Tilton,  54  N.  H,  174,    -      875 


XXXV 


Ben.] 


TABLE  OF  CASES. 


[Bm. 


Bentley  v.  Bates,  4  Younge  & 

C.  Ex.  182,      163,  184,  186,  586,  927 

V.  Craven,  18  Beav.  75,     -      303 

V.  Harris,  10  R.  I.  434  (14 

Am.  Rep.  095),        -        -        43,  922 
V.  White,  3  B.  Mon.  263 

(38  Am.  Dec.  18oj,         329,  374,  700 
Benton  v.  Chamberlain,  23  Vt. 

711,        -        -        -        152,  608,  609 
- —  V.   Roberts,  4   La.    Aijn. 

216,        ....        301,  343 
Bentzen  v.  Zierlein,  4  Mo.  417,    416, 

421 
Beresford  v.  Browning,  L.  R. 

20  Eq.  564  (affd.  1  Ch.  D.  30),     239, 

454 

V.  Browning,  1  Ch.  D.  30,     455, 

642 
Bergeron    v.     Richardott,    55 

Wis.  129,        281,  284,  288,  291,  295, 

545,  790 
Berkey  v.  Judd,  22  Minn.  287,     933, 

961 
Berks  v.  French,  21  Kan.  238,  611 
Berkshire  Woolen  Co.  v.  Jiiil- 

lard,  75  N.  Y.  535  (31  Am. 

Rep.  488;  aff.  13  Hun,  506),  -     452, 

453 

V.  Juillard,  13  Hun,  506,  -      841 

Bernard  v.  Torrance,  5  Gill  & 

J.  (Md.)  383,   -      153,  156,  529,  607, 

608,  609,  1157 
■        V.  Wilcox,  2  Johns.  Cas, 

874,         ....       719,  723 
Bernie  v.  Vandever,   16  Ark. 

616,  -        -        -       794,  801,  968 

Berolzheiraer  v.  Strauss,  51  N. 

Y.  Superior  Ct.  96,       716,  724,  735 
Berrian,   Re,  6  Ben.  297  (aflfg. 

44  How.  Pr.  216),  -        -       825,  835 
Berry  v.  Folkes,  60  Miss.  576,       51, 

298,  320,  571,  573,  577,  597,  599,  603, 
767,  770,  774,  785,  801 
V.  Gillis,  17  N.   H.   9  (43 

Am.  Dec.  584),       -        -        -      385 
-^v.  Harris,  22  Md.   30,     719,  723, 

723,  1104 


Berry  v.  Jones,  11  Heisk.  206,     770, 

771,  772,  1003 
V.  Kelly,  4  Robt.  (N.  Y.) 

106, 1108 

V.  McLean,  11  Md.  92,     532,  636 

V.  Masters,  18  111.  98,        -      920 

Berryhill  v.  McKee,  1  Humph. 

31,  -  -  -  -  349,  365,  761 
Berthold    v.     Goldsmith,      24 

How.  536,  -  -  23,  43,  70,  257 
Besch   V.  Frolich,   1  Phil.  172; 

7  Jur.  73,  -  -  -  581,  597 
Beste  V.  His  Creditors,  15  La. 

Ann.  55,  ....      335 

Bethel  v.  Franklin,  57  Mo.  466,     887 

89f 
Betts  V.  June,  51  N.  Y.  274,    -     304 

305,  719,  72'r 
Beudel  v.    Hettrick,  45  How. 

Pr.  198 ;  3  Jones  &  Sp.  405,     43,  56- 

383,  102" 
Beulali  Park  Estate,  Re,  L.  R. 

15  Eq.  43,  -  -  -  -  78"^ 
Bevan  v.  Lewis,  1  Sim.  376,  -  439 
Bevans     v,    Sullivan,    4    Gill 

(Md.),  383,  770,  909,  983,  1151,  1159 
Beveridge    v.     Hewitt,    8    111. 

App.  467,  ....  1151 
Biddlecombe  v.    Bond,  4  Ad. 

&  E.  332,  -  -  -  -  238 
Biddulph,  Ex  parte,  8  DeG.  & 

Sm.  587,  -        -        -       474,  842 

Bidwell  V.  Madison,   10  Minn. 

18, 88 

Biernan   v.    Braches,     14   Mo. 

24, 864,  868 

Bigelow,  In  re,  1  Bankr.  Reg. 

667, 457 

,  In  re,  2  Bankr.  Reg.  [121] 

371;  3  Ben.  146,       -        -        -    841 

V.  Eliot,  1  Cliff.  28,     35,  445,  G08 

V.  Gregory,  73  111.  197,      -  5 

V.  Lehr,  4  Watts,  378,      -      538 

V.  Henuiger,  33  Kan.  362,         3'.;0 


Biggs  V.  Hubert,  14  S.  Ca.  620,       426 
Bignold,  Ex  parte,  2  Mont.  & 

A.  633, 383 

xxxvi 


Bio.] 


TABLE  OF  CASES. 


[Bla. 


Bignold  V.  Waterhouse,  1  M. 

&  S.  255,  ....  895 
Bill  V.  Barker.  16  Gray,  63,      -      653 

V.  Porter,  9  Conn.  23,     434,  1151, 

11.54,  1162,  1168 
Billings  V.  Meigs,  53  Barb.  272,    1038. 

1047 
Billingsley     v.     Dawson,     27 

Iowa,  210,  -  -  -  193,  576 
Bilton    V.    Blakely,    6   Grant's 

Cb,  (Up.  Can.)  575,      685,  6S9.  715. 

731,  997 
Binpham  v.  Shaw,  16  Grant's 

Ch.  373,  ....      987 

Bininger  v.    Clark,    60    Barb. 

113;  10  Abb.  Pr.  (N.  S.)  264,      660, 

669 
Biuuey  v.    Le   Gals,  19  Barb. 

592;  1  Abb.  Pr.  283,  -  -  880 
Binns  v.   Waddill,    32    Gratt. 

588,  ....  1038,  1046 
Birchett  v.    Boiling,    5  Munf. 

(Va.)442,  ....  1014 
Bird  V.  Austin,  8  Jones  &  Sp. 

109, 709 

V.  Bird,  77  Me.  499;  1  Atl. 

Rep.  455,         ....      736 

V.  Caritat,  3  Johns.  342,  -     1026 

V.  Fake,  I  Pin.  (Wis.)  290,     435, 

544,  1022 

V.  Lake,  1  H.  &  N.  338,    -      677 

V.  Lanius,  7  Ind.  615,        -      446 

V.  Morrison,   12   Wis.   158 

[138],       ....       281,  801 

V.  Plerpoint,  1  Johns.  118,     1026 

Birdsall  v.  Bemiss,  2  La.  Ann. 

449, 455 

V.  Colie,  10  N.  J.  Eq.  63,      995 

Birdsoug  v.    McLaren,    8  Ga. 

521, 1121 

Birkett  v.  Hird,  55  Wis.  650,  -  902 
V.  McGuire,  31   Up.  Can. 

Com.  PI.  430,  -  -  -  497,  534 
Bnks  V.  French,  21  Kan.  238,      105, 

547 
Birley  v.  Kennedy,  6  New  Rep. 

395, 972 


Birtwhistle  v.  Woodward,   17 
Mo.  App.  277,         -        -   1103,  1113 

Bisbee  v.  Taft,  11  R.  L  307,     61,  257, 

259 

Bischoff  V.  Blease,   20  S.  Ca. 
4ii0, 1067 

B.schoiTsheim    v.    Baltzer,   20 

Fed.  Rep.  890,        -        -        -      722 

Bisel  V.  Hobbs,  6  Blackf.  479,      156, 

199,  445,  1143 

Bishop  V.  Brecles,  Hoflfu).  (N. 
Y.)  Cli.  534,    -        -        -       517,  594 

V.  Countess  of  Jersey,  3 

Drew.  143,      -        -        -        -      475 

V.  Georgeson,  60  111.  484,       95, 

1151 

V.  Hall,  9  Gray,  430,  -        -  1023 

V.  Hubbard,   23  Cal.   514,     560, 

566,  1131,  1133 

Bispham  v.  Patterson,  2   Mc- 
Lean, 87,        -        -        -        -      700 

V.  Price,  15  How.  162,      -      960 


Bissell    V.   Adams,    35    Conn. 

299,        ....        703,  705 

V.  Araes,  17  Conn.  121,     -      933 

V.    Foss,    114    U.    S.    253 

(afFg.  s.  c.  as  First  Nat'l  B'k 

V.  Foss,  4  Fed.  Rep.  694,  and 

2  McCrary,  73),      - 
V.  Harrington,    18  Hun, 


81, 


V.  M.  S.  &  N.  I.  R.  R.  Cos. 


310 

303 
133 


23  N.  Y.  258, 
Bitter  v.  Rath  man,    61   N.  Y. 

513,  ....      136,  137 

Bitzer  v.  Shunk,  1  Watts  &  S. 

340  (37  Am.  Dec.  469),   -      377,  379 
Bivingsville  Cotton  Manuf.  Co. 

V.  Bobo,  11  Rich.  (S.  Ca.)  L. 

386, 378 

Bjornstad,  Re,  18  Bankr.  Reg. 

383,  ....    560,  1131 

Black's  Appeal,  89  Pa.  St.  201,      289 

,  44  Pa.  St.  503,  825,  827 

Black  V.    Bird,    1    Hayw.  (N. 

Ca.)  273,  ....      281,  381 
V.  Bush,    7   B.  Mon.  210,      717 


XXXVll 


Bla.] 


TABLE  OF  CASES. 


[Blo. 


Black  V.  Campbell,  6  W.   Va. 

51, 41G,  1165 

V.  Merrill,  65  Cal.  90,         -      964 

V.  Struchers,  11  Iowa,  459,     737, 

746 
Blackett  v.  Weir,  5  B.  &  C.  385,  1169 
Blackiston's  Appeal,  813^  Pa. 

St.  389, 268 

Black  well  v.   Clay  well,  75  N. 

Ca.  213,   -        -        -        -      583,  943 

V.  Rankin,  7  N.  J.  Eq.  152,     566, 

567,  llO'J 

V.  Reid,  41  Miss.  102, 

Blain,  Ex  parte,  12  Ch.  D.  522, 
Blair  v,  Bromley,  2  Ph.    354; 

5  Hare,  542,    -        -        -        - 

—  V.  Johnston,  1  Head,  13,  - 

T.  Snover,  10  N.  J.  L.  153, 

V.  Wood,  108   Pa.  St.  278, 

Blaisdell  v.    Pray,  68  Me.  269, 


1049 
1059 

474 

763 

1024 

749 

900, 

902 

Blake  v.  Buchanan,  22  Vt.  548,    1166 

V.    Dorgan,    1  G.    Greene 

(Iowa),  537,    -        -      577,   578,   594 

V.  Langdon,  19  Vt.  4S5  (47 

Am.  Dec.  701),       -        -        -     1082 

V.  Nutter,  19  Me,  16,      186,  291 

V.  Smiley,  84  Ind,  212,      -       825 

V.  Ward,  137  Mass.  94,      -      90S 

V.  Wheaton,  2  Hay w.  (N. 

Ca.)  109;TayI.  70,  -        -      882,884 
Blakeley  v.  Le  Due,  22  Minn. 

476, 268 

Biakely  v.  Bennecke,  59  Mo. 

193, 75 

Blakeney  v.  Dufaur,  15  Beav. 

40, 996 

Blaker  v.  Sands,  29  Kan.  551,      276, 

404,  585,  587,  733 

Blakly  v.  Graham,  111  Mass.  8,       861 

Blanchard     v.     Coolidge,     23 

Pick.  151,      43.  257,  260,  1107,  1110 

V.  Kaull,  44  Cal.  440,        -     4,  7 

V.  Paschal,  08  Ga.  32  (45 

Am.  Rep.  474),       -        -        -    1131 

V.  Pasteur,  2  Hayw.  393,     420, 

422 


BlasdeU  v.  Souther,   6  Gray, 

149, 

Blatcliley  v^  Coles,  6  Colorado, 

349, 

Blaylock's  Appeal,  73  Pa.   St. 

146,         ....       310,  311 
Blew  V.  Wyatt,  5  C.  &  P.  897, 
Bliffinsv.  Wilson,  113  Mass.  248, 
Blight  V.  Ewing,  1  Pittsb.  275, 
V.  Tobin,  7  Monroe,   612 

(18  Am.  Dec.  219), 
Blin  V.  Pierce,  20  Vt.   25, 
Blinu  V.  Evans,  24  111.  317,       - 
Biiss  V.  Swartz,   7  Lans.   187; 

64  Barb.  215, 
Blisset  V.  Daniel,  10  Hare,  493; 

1  Eq.  484,         241,  242,  432.  433,  913 
Block  V.  Fitchburg  R,   R,   139 

Mass.  308,       -        - 
Blodget  V.    Conkliu,    9   How. 

Pr.  442, ,         -        -        .        . 
V.  Muskegon  (Mich.  1886), 


217 


305 


521 

967 

43 

480 

1052 

447 

101 


66 


380 


176 


1131 


27  N.  W.  Rep.  686, 
Blodgett,  Re,  10  Bankr.   Reg. 

145, 

V.  Amer.    Nat'l    Bk.    49 

Conn.  9,  -        -        -       598,  602 

V.  Jackson,  40  N.  H.  21,  -      191 

V.  Sleeper,  67  Me.  499,      -    1037 

V.  Weed,   119  Mass.   215,       215, 

352,  356 
Bloodgood   V.   Bruen,  8  N.  Y. 

362         ...        703,  706,  750 
Bloom  V.  Helm,  53  Miss.  21,    -     322, 
342,  349,  352,  358 
Bloomfield    v.     Buchanan,    13 

Oregon,  108,  ....        17 
V.  Buchanan,  14  Oregon, 

181,  ....       455,  973 

Bloomley   v.    Grinton,    9  Up. 

Can.  Q.  B.  455,      -        -       416,  418 
Bloss  V.  Chittenden,  2  Thomp. 

&G.  11, 

Blount   V.  Williams,  28  Ark. 

374, 

Bloxham  v.    Pell,    cited   in   2 

W.  Bl.  999,     -        -        -    16,  47,  55 


860 
869 


XXXVUl 


Blu.J 


TABLE  OF  CASES. 


[Boo. 


Bluck   V.  Capstick,  12  Ch.  D. 

863,  ....       805,  806 

Blue  V.  Leathers,  15  111.  31,      -  59,  61 
Blum   V.   Thomas.  60  Tex.  153 

(10  Reporter,  732),  -        -     1058 

Blumenthal,    Re,    18     Bankr. 

Reg.  555.  -        .        -        -        43 

Blumer,  Re,  13  Fed.  Rep.  489,     825, 

833,  833 

,  In  re,  13  Fed.  Rep.  633,      453a, 

841 
Blunt  V.  Williams,  28  Ark.  374.  874 
Blythe,  Ex  parte,    16   Ch.    D. 

630, 836 

Boardman,  Ex  parte,    1   Cox, 

275, 835 

V.  Adams.  5  Iowa,  234,     317,  319 

V.  Close,  44  Iowa,  438,      -     316, 

217,  770,  775 

V.  Gore,  15  Mass.  331,      333,  353 

V.  Keeler,  3  Vt.  65,         43,  1033. 

1053 
Boast  V.  Firth,  L.  R.  4  C.  P.  1,     334, 

770,  780 
Boatmen's  Sav.  Inst.  v.  Mead, 

53  Mo.  543,  -  -  -  528,  529 
Boddam  v.  Ryley,  1  Bro.  C.  C. 

239 ;  2  id.  2 ;  4  Bro.  P.  C.  561,  788 
Bodenham  v.  Purchas,  2  B.  & 

Aid.  39, 499 

Bodwell  V.  Eastman,  106  Mass. 

525,  -  -  -  -  72,  73,  74 
Bofenschen,  Succession  of,  29 

La.  Ann.  711,  -  -  -  198 
Bogerau  v.   Gueriuger,  14  La. 

Ann.  478,  ....  690 
Bogart  V.  Brown,  5  Pick.  18,     334. 

1145 
Boggess  V.  Lilly,  18  Tex.  200,     113. 

137 
Boggs  V.   Johnson,  26  W.  Va. 

821,  ...  -  949,  950 
Bogue's  Appeal,  83  Pa.  St.  101,  1114 
Bohler  v.  Tappan,  1  Fed.  Rep. 

469;  1  McCrary,  134,  715,  719,  731 
Bohm   V.  Dunphy,  1  Montana, 

333, 722 


Bohrer  v.  Drake,  S3  Minn.  408,       26, 

590,  761 
Boire  v,    McGinn,  £    Oregon, 

466,        -        -        -        978,  979,  935 
Boisgerard  v.  Wall,  1  Sm.   & 

Mar.  Ch.  404,        -  72,  211,  914 

Bolckow  V.  Foster,  24  Grant's 

Ch.  (Up.    Can.)  333;  affd.  25 

id.  476,  overruling  9  id.  9,     -     191, 

723,  724 
V.   Foster,  25  Gj-ant's  Ch. 

(Up.  Can.)  470,       -        -        -       191 
Bolitho,  Ex  parte.  Buck.  100,     439, 

443 
BoUand,    Ex    parte,   Mont.    & 

Mac.  315;  1  Mont.  &  A.  570,       474 
Boiling  V.  Anderson,   4  Baxt. 

550, 395 

Bolton  V.  Dickens,  4  Lea,  569,     944, 

953 
Bonbonus,    Ex    parte,   8  Ves. 

540,         -        -        -        341,  370,  406 
Bond   V.  Aitkin,  6  Watts  &  S. 

165  (40  Am.  Dec.  550).  416,  430 

V.  Bemis,  55  Mo.  534,        -      853 

V.  Gibson,  1  Camp.  185,   -     348, 

373 

V.  Hays,  18  Mass.  34,       864,888 

V.  Milbourn,  30  W.  R.  197,      664, 

804 

V.  Nave,  63  Ind.  505,        -     835, 

1138,  1151 

V.  Pittard,  3  M.  &  W.  357,    55,  56 

Bonfield  v.  Smith,  13  M.  &  W. 

405, 106 

Bonis  V.  Louvrier,  8  La.  Ann. 

4, 761,  780 

Bonnaffe  v.    Fenner,  6  Sm.  & 

Mar.  212  (45  Am.  Dec.  278),     880, 

1136 
Bonney  v.   Stoughton,    18   III. 

App.  563,        -        -        -        -      942 
Bonsall  v.   Conily,  44  Pa.   St. 

413, 1131 

Booe  v.  Caldwell.  13  Ind.  13,     94,  437 
Booker     v.      Kirkpatrick,     26 

Gratt.  145,      -        -        -        -      582 
xxxix 


Boo.] 


TABLE  OF  CASES. 


[Bow. 


Boor  V.  Lowrey,  103  Ind.  4G8,     331, 

333 
Boorum  v.  Ray,  73  Ind.  151,    -     454, 

1049,  1117,  1119 
Booth  V.  Briscoe,  2  Q.  B.  D.  496,     1033 

V.  Clark,  17  How.  333,      -    1005 

V.  Curtis,  17  W.  R.   393; 

30  L.  T.  N.  S.  153,  -        -      659 
V.  Farmers'  &  Mech.  B'k, 

74. N.  Y.  228  (aflF.    11    Hun, 

258),        -      453,  453a,  531,  853,  881 
'■  V.  Jarrett,  53   How.    Pr. 

169, 674 

V.  Parks,  1   Moll.    (Irish), 

465;  Beatty,  444,  -        -      216,  801 

V.  Quin,  7  Price,  193,        -      607 

V.  Ridley,  8   Up.  Can.   C. 

P.  464, 524 

V.  Todd,  8  Tex.  137,         -      908 

Boothroyd,  Re,  14  Bankr.  Reg. 

223, 1131 

Bopp  V.  Fox,  63  111.  540,  -    180,  283, 

290 
Borden  v.  Cuyler,  10  Cush.  476,  841 
Boro  V.  Harris,  13  Lea(Tenn.), 

36,  ...    155,  nil,  1112 

Bosanquet  v.  Wray,  6  Taunt. 

597,         -        -        -       900,  902,  905 
Bostick  V.    Brittaiii,    25   Ark. 

483, 278 

Bostwick  V.  Isbell,   41   Conn. 

305, 1004 

Boston    &    Albany    R.    R.    v. 

Pearson,  128  Mass.  445,     73,  73,  74 
Boston,  etc.    Smelting  Co.  v. 

Smith,  13  R.  I.  27  (43  Am. 

Rep.  3),  -        -        -  23,  47,  1135 

Boswell  V.    Dunning,    5  Har. 

(Del.)  231,        ....     1067 

V.  Green,  25  N.  J.  L.  390,       406 

Bosworth  V.  West,  68  Ga.  825,     1095 
Bothara  v.  Keefer,  2  Out.  App. 

595, 32 

Botifeur  v.  Wyman,  1  McCord, 

Ch.  IGl,  ....      964 

Botsford      V.     Kleinhaus,     29 

Mich.  333,      -        501,  510,  518,  519 


Bottomley  v.  Nuttall,  5  C.  B. 

(N.  S.)  123,  ....  439 
Boughner  v.  Black,  83  Ky.  531,     805, 

880,  898 
Bouldin  v.  Page,  24  Mo.  594,  398 
Boulton  V.   First  Natl.   Bk.  46 

Iowa,  273,  -  -  -  -  1138 
Bourne  v.   Freeth,  9  B,    &  C. 

632, 79,  99 

V.  Woold  ridge,  10  B.  Mon. 

492,  ....   1079,  1083 

Boutelle  v.    Smith,  116  Mass. 

Ill,  *.-.--  677 
Bouton  V.   Bouton,  43    How. 

Pr.  11,  -  -  -  -  971,  973 
Bovill  V.  Hammond,  6  B.  &  C. 

149,  ...  -  856,  865 
V.  Wood,  2  M.  &  S.  25,     -      746 


Bowas  V.  Pioneer  Tow  Liue,  3 
Sawy.  31,       -        -        -         67,  463 

Bowden,  Ex  parte,  1  Deac.  & 
Ch.  135,  -        ...      843 

■ V.  Schatzell,  Bail.  (S.  Ca.) 


Eq.  360  (33  Am.  Dec.  170),  -  1114 
Bowen   v.    Billings,    13    Neb. 

439, 1103 

V.  Clark,  1  Biss.  138,      325,  338, 

403 

y.  Crow,  16  Neb.  556,       -      454 

V.  Richardson,   133  Mass. 

293,  -  -  -  -  111,  120 
V.  Rutherford,  60  111.   41 

(14  Am.  Rep.  25),  -  -  94,  1155 
V.  Troy  Portable  Mill  Co. 

31  Iowa,  460,  -        -        -     1055 

Bower  v.  Douglass,  25  Ga.  714,      694, 

698 
Bowers  v.  Whittle,  63  N.    H. 

147  (56  Am.  Rep.  499),  -  -  677 
Bowie   V.     Maddox,     29     Ga. 

285, 91,97 

Bovvin    V.    Sutherlin,   44  Ala. 

278, 1083 

Bowker  v.  Bradford,  140  Mass. 

531, 139 

V.  Gleason  (N.  J.),  7  Atl. 

Rep.  885,        -        -        -      257,  259 


xl 


Bow.] 


TABLE  OF  CASES. 


[Bra. 


Bowkerv.  Smith,  48  N.  H.  Ill 

(3  Am.  Rep.  189),    -        -        -      847 
Bowler  v.    Huston,    30  Gratt. 

2G6  (33  Am.  Rep.  673),       1089,  1093 
Bowling  V.    Dobyns,    5  Dana, 

434,         ...        -       786,  788 
Bowman  v.  Bailey,  20  S.  Ca. 

550,         ....       281,  297 

V,  Bailey,  10  Vt.  170,        -  43,  59 

V.  Blodgett,  2  Met.  308,    -      693 

V.  Cecil  Bank,  3  Grant's 

Cas.  (Pa.)  33,  -        349,  353,  362 

V.  O'Reilly,  31  Miss.  261,       180 

V.  Spalding,  2  S.  W.  Rep. 

(Ky.)911,        ....      553 
Bowne  v.  Thompson,  1  N.  J.  L. 

2,     -        -        -        -     448,  451,  1081 
Bowsher  v.  Watkins,  1  Russ.  & 

M.  277, 926 

Bowyer  v.  Anderson,  2  Leigh 

(Va.),  550,       -        -        -        -  45,  46 

V.  Kuapp,  15  W.  Va.  277,       537 

Boyce  v.   Coster,  4  Strob.  (S. 

Ca.)  Eq.  25,    -        -        -       184,  295 
V.  Watson,   3  J.   J.    Mar. 

498, 331 

Boyd  V.  Brown,   2  La.    Ann. 

218, 868 

V.  Foot,  5  Bosw.  110,      765,  766, 

938,  980 

V.  McCann,  10  Md.  118,    -     100, 

353,  353,  575,  637 

V.  Myuatt,  4  Ala.  79,       86,  213, 

780,  876 

V.  Plumb,  7  Wend.  309,   -     349, 

363 

V.  Ricketts,  60  Miss.  63,  -     150, 

608,  1147,  1151,  1157 
.Boyer  v.  Knapp,   15  W.  Va. 

277,         .'----      523 
Boyers  v.  Elliott,  7   Humph. 

204,         -        -        -        290, 291,  822 
Boyle's  Estate,  Tucker  (N.  Y.), 

4, 139,  140 

Boyle  V.  Boyle,  4  B.  Mon.  570,     740, 

935 
V.  Skinner,  19  Mo.  83,      -      443 


Boynton   v.   Boynton,   10  Vt. 

107,  ....       237,  739 

V.  Page,  13  Wend.  425,     -     277, 

547 
Bozon     V.     Farlow,     1     Mei\ 

459, 008 

Bracken  v.   Ellsworth,   64  Ga. 

243,  -        -         173,  507,  510,  511 

V.  Kennedy,  4  111.  558,      -     851, 

889,  899,  931,  936 
V,  March,  4  Mo.  74,     -     446,  449 


Braches  v.  Anderson,   14  Mo. 

441, 449 

Brackett    v.    Sears,    15   Mich. 

214,  ....  1079,  1080 
Bradbury,  Ex  parte,  4   Deac. 

203, 503 

Bradbury  v.    Barnes,   19   Cal. 

120,         ....       308,  311 

V.  Dickens,  37  Beav.  53,  -     660, 

664,  990 

V.  Smith,  21  Me.  117,      256,  258, 

1105 
Bradford  v.  Johnson,  44  Tex. 

381, 138 

V.  Kimberly,  3  Johns.  Ch. 

431,         ....       770.  777 

V.  Peckhara,  9  R.  I.  250,  -      677 

V.  Spyker,  32  Ala.  134,     -      943 

V.  Taylor,  61  Tex.  508,        -     1074 

Bradley,  Re,  2  Biss.  515,  -  453a,  841 
V.    Brigham,    137    Mass. 

545,  -  -  -  782,  783,  788 
V.  Camp,  1  Kirby  (Conn. ), 

77  (1  Am.  Dec.  13),       323,  618,  681, 

693 

V.  Chamberlin,  16  Vt.  613,     216, 

771 

V.  Harkness,  26  Cal.  69,  -        59 

V.  Linn,  19  111.  App.  323,     329, 

343 

V.  Richardson,  23  Vt.  720,       499 

V.  White,  10  Met.  303  (43 

Am.  Dec.  435),       ...        43 


Bradner  v.    Strang,  89  N.  Y. 
299  (affd.  in  S.  v.  B.  114  U.  S. 

555), 472 

xli 


Bra.] 


TABLE  OF  CASES. 


[Bel 


Bradshavv  v.  Appersou,  3G  Tex. 

133,  ....  43,  150 
Bradstreet  v.  Baer,  41  Md.  19,     136, 

137 
Brady  v.  Brady,  8  Allen,  101,  -  1170 
V.  Colhoun,  1  Pa,  (Penrose 

&  Watts)  140,  -  -  58,  64 
V.  Hill,  1  Mo.  315  (13  Am. 

Dec.  503),        ....      700 

V.  Reed,  87  Pa.  St.  Ill,     -     1170 

Brainerd  v.  Bertram,  5  Abb. 

N.  Cas.  103,  -  -  -  -  1028 
Braitbwaite  v.  Skotield,  9  B.  & 

C.  401, 75 

Braley  v.  Goddard,  49  Me.  115,  37 
Brampton  v.  Beddoes,  13  C.  B. 

N.  S.  538,  ...  -  677 
Branch  v.  Adam,  51  Ga.  113,    1103, 

1113 

V.  V/iseman,  51   Ind.    1,    1101, 

1105 
Brand  v.  Buulcott,  2  B.   &  P. 

2-.i5, 1021 

Brande  v.  Bond,  63  Wis.  140,  1106 
Brandon  v.  Nesbitt,  6  T.  R.  23,  110 
Brannon  v,  Hursell,  112  Mass. 

63, 1153 

Brasfield  v.  French,  59    Miss. 

632,  -  -  52,  136,  600,  601,  G03 
Brasier  v.  Hudson,  9  Sim.  1,     381, 

681,  726 
Brassfipld   v.  Brown,  4  Rich. 

(S.  Ca.)  ^.  293,  -  -  -  873 
Braun's    Appeal,   105    Pa.    St. 

414, 229 

Braxton  v.  State,  25  Ind.  82,  749 
Bray  v.  Grain,  59  Tex.  649,       -      489 

V.  Froraont,  6  Madd.  5,    158,  164, 

167 

V.  Morse,  41  Wis.  343,      -      384 

V.  Seligman,  75  Mo.  31,     -    1130 

Brayley  v.  Goff,  40  Iowa,  76,       383 

V.  Hedges,  52  Iowa,  623,      344, 

3G8 
Brazee  v.  Woods,  35  Tex.  302,     634, 

640,  647 
Bread  v.  Lynn,  126  Mass.  367,      268 


Brealsford  v.  Meade,  1  Yeates, 

483, 1125 

Brecher  v.  Fox,   1   Fed.  Rep. 

273, 566 

Breckinridge     v.     Shrleve,     4 

Dana  (Ky.),  375,  -  329.  334,  371 
Bredow  v.   Mut.   Sav.  Inst.  28 

Mo.  181,  -  690,  718,  731,  733 
Breed  v.  Judd,  1  Gray,  455,  -  144 
Breen  v.  Richardson,  6  Colo- 
rado, 60.~,  .  .  -  300,  731 
Breuchley,   Ex  parte,  2  GI.  & 

J.  127, 906 

Brent  v.  Davis,  9  Md.  217,  322,  323 
Breslin  v.   Brown,  24  Oh.  St. 

565, 2,  112 

Bret  V.  Beckwith,  3  Jur.  N.  S. 

31, 27 

Brettel   v.  Williams,   4  Exch. 

623,  321,  349 

Brewer  v.  Browne,  68  Ala.  210,  181, 
285,  295,  297,  942,  948,  949 
V.  Norcross,  17  N.  J.  Eq. 

219, 934 

V.  Worthington,  10  Allen, 

329, 636 

V.  Yorke,  46  L.   T.  N.  S. 

289,  ....  805,  S09 
Brewing  v.  Berryman,  15  New 

Brunswick,  515,  -  462,  468,  471 
Brewster  v.  Hammet,  4  Conn. 

540,  ....   1109,  1110 

V.     Hardeman,     Dudley 

(Ga.),  138,       -        -        -       700,  705 

V.  Mott,  5  111.  378,     427,  629,  632 

1037,  1038,  1044,  1046 

V.  Sterrett,  32  Pa.  St.  115,     1169 

Brice's  Case.    See  Devaynes  v. 

Noble. 
Brickhouse  v.  Hunter,  4  Hen. 

&  M.  (Va.)  363,  -  -  978,  982 
Bridenbecker     v.     Mason,     16 

How.  Pr.  203,  -  -  -  377 
Bridge  v.  Gray,  14  Pick.  55  (25 

Am.  Dec.  35S).       -        -        -      701 

V.    McCuUough,    27  Ala, 

661,         ....       825,  828 


xlii 


Bui.] 


TABLE  OF  CASES. 


[Bro. 


Bridge  v.   Swain,  3  Redf.  (N. 

Y.)4S7,  ...  -  714,  7;-)0 
Bridges  v.  Sprague,  57  Me.  543,  45,  59 
Brien   v.    Harriman,    1   Tenn. 

Ch.  407, 593 

Brierlv  v.   Cripps,  7  C.   &   P. 

709,  ....  858,  861 
Briggs  V.  Bower,  5  Up.  Can. 

Q.  B,  (Old.  Ser.)  673,     -        -     1022 

V.  Briggs,  15  N.   Y.  471 

(aff.  s.  c.  20  Barb.  477),       -      707 

V,  Daugherty,  48  lud.  247,       849 

V.  Hubert,  14  S.  Ca.   620,     817, 

373,  429,  430 
V.  Leitelt,  41  Mich.  79,     -      179 

V.   Vauderbilt,    19  Barb. 

222,  .  -  -  .  66,  134 
Brigliam  v.   Clark,  100   Mass. 

430,         ....       33,  1144 

V.  Dana,  29  Vt.  1,     -        49,  309, 

766,  792 
V.  Smith,  3  E.  &  A.  (Up. 

Can.)  46,  ....  122 
Bright  V.  Sampson,  20  Tex.  21,  1090 
Brinegarv.  Griffin,  2  La.  Ann. 

154, 894 

Brink  v.  New  Amsterdam  F, 

Ins.  Co.  5  Robt.  (N.  Y.)  104,       78, 

336,  382,  409 
Brinkerhoff  v.  Marvin,  5  Johns. 

Ch.  320,  ...        -      189 

Brinkley  v.  Harkins,  48  Tex. 

225,  -        -        -        -  32,  35,  815 

Brinley  v.  Kupfer,  6  Pick.  179,      864 
Brisban   v.  Boyd,  4  Paige,  17,       84, 

607,  700 
Bristol  V.  Sprague,    8    Wend. 

423, 611 

Bristow  V.  Taylor,  2  Stark.  50,     681, 

684 
Broaddus  v.  Evans,  63  N.  Ca. 

633,  -  -  -  383,  411, 510 
Brock  V.  Bateman,  25   Oli,  St. 

609  (15  Am.  Law  Reg.  N.  S. 

216),  -  -  -  827,  832,  833 
Brockman  v.    Aulger,    12   111. 

277,        ....        968,  978 


Brockway  v.  Burnap,  16  Bnrb. 

309  (12  Barb.  347),         -  16,  43 

Broda  v.    Greenwald,  63  Ala. 

53S, 849 

Bromley  v.    Elliot,  38   N.    H. 

287,  -  23,  30,  33,  150,  322,  323,  324 
Brook  V,  Enderby,  2  Brod.  & 

B.  70, 497 

Brooke  v.Evans,  5  Watts,  193,       80. 

446,  507,  508 
V.  Garrod.  2  DeG.  &  J.  62 ; 

3  K.  &  J.  608,  -  -  -  249 
V.  Washington,  8  Gratt. 


248  (56  Am.  Dec.  142),         150,  281, 

301,  344,  374,  422 

Brooks  V.  Brooks,  12  Heisk.  12,      714, 

738,  828 

V.  McKinney,  5  111.  309,        1169 

V.  Martin,  2  Wall.  70,      125,  309 

V.  Sullivan,  32  Wis.  444,        338, 

339 
Broome,  Ex  parte,  1   Rose,  69, 

(decree  in  1  Coll.  598,  note),     595, 

808,  844 
Brothers,  The,  7  Fed.  Rep.  878 ; 

5  Hughes,  282,  -  -  -  908 
Brougham   v.    Balfour,  3  Up. 

Can.  C.  P.  72,  -  -  -  1024 
Broughton  v.  Brougliton,  44  L. 

J.  Ch.  526 ;  23  W.  R.  990,  -  661 
Brower    v.    Creditors,   11    La. 

Ann.  114,  -  -  -  -  52 
Brown's  Appeal,  17  Pa.  St.  480,  155 
,  89   Pa.  St.    139  (Brown's 

Estate,  11  Phila.  127),        770,771, 

786,  794,  801 
Brown,    Ex  parte,  cited  in   1 

Atk.  225,  ....  440 
V.  Agnew,   6    W.   &    S. 

238,         ....        583,866 

V.  Allen,  35  Iowa,   306,        722, 

724,  1170 

V.  Atkinson,  91  N.  Ca.  389,     1153 

V.  Belches,  1  Wash.  (Va.) 

9,     -        -  ...     1093 


V.  Birdsall,  29  Barb.  549,       151, 

1052 
xiiii 


Bro.] 


TABLE  OF  CASES. 


[Bry. 


Brown  v.  Black,  96  Pa.  St.  483, 
V.  Bostian,    6    Jones    (N. 


531, 

532 


378 

695 

1155 

181 


Ca.),  L.  1,       -       -        -       -    1016 

V.  Brabham,  3  Oh.  275,     -      491 

V.  Broach,  52  Miss.  536,        349, 

694,  695 

V.  Brown,  4    Taunt.  752,     1167 

V.  Byers,  16  M.  &  W.  252,      329 

V.  Chancellor,  61  Tex.  437,     136, 

139,  588,  695 
V.  Cinqmars,  2  Up.  Can. 

Prac.  Rep.  205.      - 

V.  Clark,  14  Pa.  St.  469,    - 

V.  Crandall,  11  Conn.  92, 

V.  Dale,  9  Ch.  D.  78, 

V.  De  Tastet,  Jacob,  284 ; 

4  Russ.  126,  164,  167,  773,  794 

V.  Fitch,  33  N.  J.  L.  418,         346 

V.  Gellatly,  31  Beav.  243,        743 

V.  Gordon,  16  Beav.  302,  -      706 

V.  Hartford   F.    Ins.  Co. 

117  Mass.  479,        -       143,  382,  409 

V.  Haynes,   6  Jones,   Eq. 

(N.  Ca.)  49,     237,  544,  917,  918,  983 

V.  Hicks,  8  Fed.  Rep.  155,      593 

V.  Hicks,  24  Fed.  Rep.  811,        43 

V.  Higginbothara,  5  Leigh 

(Va.),  583  (27  Am.  Dec.  618),       61, 

679,  693 

V.  Hurd,  41  111.  131,      1165,  1168 

V.  Jaquette,  94  Pa.  St.  113 

(39  Am.  Rep.  770),  -        -  45,  61 

V.  Jewett,  18  N.  H.  230,  -     136, 

195 

V.  Jones,  18  N.  H.  230,    -      135 

V.  Kidger,  3  H.  «&  N.  853,      329, 

341,  370 

V.  Lawrence,  5  Conn.  397,     199, 

381,  382,  4.39 

V.  Leonard,  3  Chit.  120,    324,  325 

V.  O'Brien,  4  Neb.  195,     -    1149 

V.  Overstreet,  4  McCord, 

79, 1086 

V.  Pickard  (Utah),  9  Pac. 

Rep.  573,  -  -  101,  201,  1094 
V.  Rains,  53  Iowa,  81,    1151, 1155 


Brown  v.  Robbins.  3  N.  H.  64,        63 

V.   Shackelford,    53    Mo. 

122,         ....      790,  791 

V.  Tapscott,  6  M.  «fe  W. 

119,         ...         56,  852," 876 

V.  Torver,  Minor  (Ala.), 

370, 884 

V.  Turner.  15  Ala.  832.     397.  697 

V.  Vidler,  cited  in  2  Russ. 

325,  341,  ....      796 

V.  Wooton,  Cro.  Jac.  73,  -      535 

Brownell  v.  Brownell,   2  Bro. 

C.  C.  61 ;  1  Mac.  &  G.  94,  958,  964 
Browning    v.     Browning,    31 

Beav.  316,       ....      245 

V.  Grady,  10  Ala.  999,       -      386 

V.  Marvin,  22  Hun,  547,  753 

Brownlee  v.  Allen,  21  Mo.  123,  88 
Brownson      v.      Metcalfe,      1 

Handy,  188,  -  -  -  .  1065 
Brozee  v.  Poyntz,  3  B.   Mon. 

178, 538 

Bruce  v.  Hastings,  41  Vt.  380,   43,  63 

V.  Nickerson,    141    Mass. 

403, 595 

Bruen  v.  Marquand,  17  Johns. 

58, 415 

Bruening,  In  re,  42  Mo.  276,  -  734 
Brugman  v.  McGuire,  32  Ark. 

733,  -  -  101,  1C9,  5U,  1094 
Bnimskill   v.  James,  11  N.  Y. 

294, 1094 

Brundred  v.  Muzzy,  25  N.  J.  L. 

268,  •        ....        23 

Brunson  v.   Morgan,   76  Ala. 

593, 296 

Brutton  v.  Burton,  1  Chit.  707,  378 
Bry  v.  Cook,  15  La.  Ann.  493,  963 
Bryan  v.  Tooke,  60  Ga.  437,  .  347, 
362,  507,  509,  1171 
Bryant  v.  Clifford,  27  Vt.  664,     411, 

1083 

V.  Hawkins,  47  Mo.  410,     537, 

709 

V.  Hunter,  6  Bush,  75,      .     281, 

290,  291,  822.  1111,  1163 
V.  Lord,  19  Minn.  396,     690,  694 


xliv 


Brt.] 


TABLE  OF  CASES. 


[Bum. 


Bryant  v.  Proctor,  14  B.  Mon. 

saa, 589 

Bryden  v.  Taylor,  2  Har.  &  J. 

396,  ....  1150,  1155 
Brydolf    v.    Wolf,     82    Iowa, 

509, 1087 

Bryer  v.  Weston,  16  Me.  261,  -   1145, 

1154 
Bryson  v.  Whitehead,  1   Sim. 

&  Stu.  74,  -  -  -  -  657 
Buchan  v.   Sumner,    2    Barb. 

Ch.  165,         281,  283,  293,  294,  297, 

820,  976,  1111 
Buchanan    v.     Comstock,     57 

Barb.  568,  ....  977 
V.  Curry,  19  Johns.  137  (10 

Am.  Dec.  200),        -        -      336,  582 

V.  Meisser,  105  111.  638,     -      882 

Buchoz  V.  Grandjean,  1  Mich. 

367, 336 

Buck  V.  Dowley,  16  Gray,  555,  43,  47 

V.  Mosley,  24  Miss.  170,   1038,  1046 

V.  Smith,  2  Colorado,  500,     1159 

V.  Smith,  29  Mich.  166  (18 

Am.  Rep.  84),  -  -  1011,  1012 
- — V.  Winn,  11  B.  Mon.  320,  281, 
285,  291,  295,  297 
Buck  Stove  Co.  v.  Johnson,  7 

L^a  (Tenn.),  282,  -  -  -  554 
Bai  khause.  Re,  3  Lowell,  331 ; 

10  Baukr.  Reg.  206,  837,  905,  906 
Buckingham  v.  Hanna,  20  Ind. 

110,  ....  161,  429 
V.  Ludlum,  29  N.  J.   Eq. 

345,  181,  540,  786,  788,  935,  955,  971 
V.  Ludlum,  37  N.  J.  Eq. 

137,  -  -  737,  747,  750,  1006 
V.  Waters,  14  Cal.  146,      -      657 


Buckley,  Ex  parte,    14  M.    & 
W.  469;  1  Ph.   562;  S.  C.  as     ' 
Ex  parte  Clarke,  DeGex,  153 
(reverses  s.   C.  as  Ex   parte 
Christie,  3  M.  D.  D.  736),     200,  346 

V.  Barber,  6  Exch.  164,     -      718 

V.  Buckley,   11  Barb.  43,      297 

V.  Carlisle,  2  Cal.  420,      -      274 

V.  Garrett,  47  Pa.  St.  204,      273 


Bucklin  v.   Bucklin,  97  Mass. 

250, 

Buckmaster  v.  Gowen,    81  111. 

153, 

Bucknam  v.  Barnum,  15  Conn. 

67, 

Buckner  v.  Calcote,   28  Miss. 

432,  ....      195,  837 

v.  Lee,  8  Ga.  285,       45,  443,  445 

V.  Ries,  34  Mo.  357,  -        -      865 


619 

877 

35 


Bucyrus  Machine   Co.,   Re,    5 

Baukr.  Reg.  303,  -  -  -  453a 
Buell  V.  Cole,  54  Barb.  353,  849,  881 
Buffalo  City  Bank  v.  Howard, 

35  N.  Y.  500,  -  -  -  013,  649 
Buffum  v.  Buffum,  49  Me.  108,     281, 

293,  297 

V.  Seaver,  16  N.  H.  160,   -    180, 

452,  829 
Bufkin  V.  Boyce,  104  Ind,  53,  995 
Buford  V.  Neely,  2  Dev.  (N.Ca.) 

Eq.  481,    544,  577,  585,  770,  773, 

796,  927,931 
Bulfinch  V.   Winchenbach,    3 

Allen,  161,  -  -  -  27,  1103 
Bulkley  v.  Dayton,  14  Johns. 

387, 383 

Bull  V.  Harris,  18  B.  Mon.  195,     325, 

338,  403 

V.  Lambson,  5  S.  Ca.  288,     1093, 

1094 
V.  O'Sullivan,  L.  R.  6  Q.  B. 

209,        ....        343,  376 

V.  Schuberth,  2  Md.  38,      36,  43 

Bullard  v.  Kinney,  10  Cal.  60,  853 
BuUen  v.  Sharp,  L.  R.  1  C.  P. 

86,  -  -  -  18,  21,  29,  47 
Bulliter  v.  Young,  6  El.  &  B.  40,  563 
BuUoc  V.  Pailhos,  20  Mart.  172,  43 
Bullock  V.  Ashley,  90  III.  102,  183 
V.  Chapman,  2  DeG.  &  Sm. 

211, 673 

V.  Crockett.  3  Giff.  507,    806,  809 

V.  Hubbard,  33  Cal.  495,       150, 

1114,  1115 
Bumpass   v.   Webb,    1    Stew. 

(Ala.)  19  (18  Am.  Dec.  34),   -      875 

V 


Bun.] 


TABLE  OF  CASES. 


[Bur. 


Bun  V.  Morris,  1  Caines,  54,  435,  544 
Bundy  v,  Youmans,  44  Mich. 

3TG,  -        -        455,  739.  785,  973 

Bunn  V.  Morris,  3  Caii\es,  54,  1024 
Bunnel  v.  Taintor.  4  Conn.  568,  303 
Bunton  v,  Dunn,  54  Me.  153,  635,  643 
Burbank  v.  Wiley,  79  N.  Ca. 

501,  ....  184,  185 
Burchard  v.  Boyce,  21  Ga.  6,        931, 

934 
Burckhardt  v.  Burckhardt,  36 

Oh.  St.  261 ;  43  id.  474,  -      663 

Burckle  v.  Eckart,   1  Den.  337 

(aff'd,  3  Den.  279 ;  3  N.  Y.  132),  43 
Burden  v.  Burden,  1  Ves.  &  B. 

172,         -        -      769,  773,  774,  1003 

V.  Cross,  33  Tex.  685,        -     1065 

V.    McElmoyle,    Bail.    (S. 

Ca.)  Eq.  375,  -  -  946,  953.  955 
Burditt  V.  Grew,  8  Pick.  108,  -  948 
Burdine  v.  Shelton,  10  Yer.  41,     959, 

964 
Burdon  v.  Barkus,  4  Giflf.  413 

(affd.  in  4  DeG.  F.  &  J.  42), 


263. 
768 

V.  Barkus,  4  DeG.  F.  &  J. 

43  (affg.  4  Giff.  413),     209,  363,  286, 

330,  573,  766,  768,  769,  803,  974 

Burfield  v.  Rouch,  31  Beav.  241,      661 

Burgan   v.    Cahoon,  1  I'enny- 

packer  (Pa.),  330,  -        -        -      101 

V.   Lyell,  3  Mich.   103  (55 

Am.  Dec.  53),  72,  330,  331,  334, 

613 
Burgen  v.  Dwinal,  11  Ark.  314,     456, 

1051,  1068 
Burge.ss  v.   Atkins,    5  Blackf. 


337, 

V.  Merrill,  4  Taunt.  468,  - 

V.  Northern  B'k  of  Ky. 

4  Bush,  600,  -  .  -  - 
Burgwyn  v.  Hostler,  Tayl.  (N. 

Ca.)  134;  1  Am.  Dec.  583,  - 
Burk  V.   Morrison,  8  B.  Mon. 

131, 

Burke  v.  Maxwell,  81  Pa.  St. 

139,    .... 


1105 
148 

343 

750 

1072 


Burke  v.  Roper,  79  Ala.  138,  75 

Burland  v.  Nas.h,  2  F.  &  F.  6S7,  498 
Burleigh    v.    Parton,    21   Tex. 

585, 365 

V.  Whito,  70  Me.  130,     237,  290, 

766.  823,  939 
Burley  v.  Harris,  8  N.  H.  233 

(39  Am.  Dec.  650),  -        -      883 

Burlington  &  Mo.   Riv.  R.  R. 

V.  Dick,  7  Neb.  243,  -  1059,  1005 
Burls  V.  Smith,  7  Bing.  705,  -  75 
Burn  V.  Burn,  3  Ves.  578,  -  416 
V.  Strong,  14  Grant's  Ch. 

(Up.  Can.)  651,  209,  316,  305,  589 
Burnam  v.   Burnam,  6  Bush, 


3S9,         .... 
Burnell  v.  Hunt,  5  Jur.  650, 

V.  Mi  not,  4  Moore.  340 

V.  Weld,  59  Me.  423,, 


281 
1106 

000 
1103 

880 


Burnes  v.  Scott,  117  U.  S.  583, 
Burnet  v.  Hope,  9  Ontario  Rep. 

10, 709,  730 

V.  Howell,  8  Phila.  531,      -    398 

Burnett  v.  Eufaula  Home  Ins. 

Co.  46  Ala.   11  (7  Am.   Rep. 

581), 273 

V.    Snyder,    76  N.  Y.  344 

(atfd.  11  J.  &  Sp.  238);  S.  C. 

81  N.   Y.   550  (37  Am.  Rep. 

537);  rev.  13  J.  &  Sp.  577,    164,  168 
V.  Snyder,   81    N.  Y.   550 


(37  Am.  Rep.  537;  rev.  13  J. 
&  Sp.  577 ;  s.  C.  76  N.  Y.  344),       23, 
164,  16G,  168,  586 


V.  Sullivan,  58  Tex.  535, 


Burnett  Line  of  Steamers  v. 

Blackman,  53  Ga.  98.    - 
Burney  v.  Boone,  33  Ala.  486, 

Burnham  v.  Hopkinson,  17  N. 

H.  259, 

V.  Whittier,  5  N.  H.  334, 


1086, 
1093 

1147 

850, 

856 

1113 
1017 
26, 


-     1080 


Burnley  v.  Rice,   18  Tex.  481, 

439,  439 
Burns  v.  Harris,  67  N.  Ca.  140,  1131 
V.  McKenzie,  23  Cal.  101,      700 


xivi 


Bur.] 


TABLE  OF  CASES. 


[Box. 


Burns  v.  Mason,  11  Mo.  469,   446,  453a 

V.  Nottingham,  60  111.  531,     849. 

858,  859,  81>1 

V.  Parish,  3  B.  Men.  8,     440,  451 

V.  Pillsbury,  17  N.  H.  66,       501 

Burnside  v.    Fetzner,    63  Mo. 

107, 533 

V.  Merrick,    4  Met.   537,     281, 

-       290,  294,  732 

V.  Savier,  6  Oregon,  154,       734 

Burpee  v.  Buun,  22  Cal.  194,     184, 

1114 
V.  Smith,  20  New  Bruns- 
wick, 408,       ...        -    1151 
Burr  V.  De  La  Vergne,  102  N. 

Y.  415, 266 

V.  Williams,  20  Ark.  171,     623, 

694,  703,  705 
Burress  v.  Blair,  61  Mo.  133,  -  633 
Burrill  v.  Daggett  (Me.  1885), 

1  Atl.  Rep.  677,      -        -       676,  677 
Burria  v.  Whitner,   3  S.    Ca. 

510, 526 

Burritt  v.  Dickson,  8  Cal.  113,       56, 

390,  510,  511 
Burroughs'  Appeal,  26  Pa.  St. 

264, 443 

Burrows  v.   Foster,    cited   in 
Clark  V.  Leach,  32  Beav.  14, 

18, 663 

Burson  v.  Kincaid,  1  Pa.  (Pen. 

&W.),  57,      -        -        -        -      385 
Burt  V.  Lathrop,  53  Mich.  106,        75 

V.  Wilson,  28  Cal.  632,      -      868 

Burton  v.  Baum,  32  Kan.  641,     5C0, 

1133 

V.  Goodspeed,  69  111.  237,        43 

V.  Rutherford,  49  Mo.  255,      733 

V.  Wigley,  1  Bing.   N.  C. 

665, 234 

V.  Wookey,  6  Madd.  867,      303 

Burtus  V.  Tisdall,  4  Barb.  571,     561, 

562,  566 
Burwell  v.  Cawood.     See  Bur- 
well  V.  Mandeville. 

V.  Mandeville,  2  How,  560,     580, 

598,  600,  601,  610,  750,  1038 


Burwell  v.  Springfield,  15  Ala. 

273, 1038 

Bury  V.  Allen,  1  Coll.  589,     591,  594, 
595,  7t0,  805,  8U6,  809 

V.  Bedford,  4  De  G.  J.  & 

Sm.  353,         ...        -      675 

V.  Harris,  22  Md.  30,        -      719 

Busby  V.  Chenault,  13  B.  Mon. 

554, 845 

Busfield  v.  Wheeler,  14  Allen, 

139, 347 

Bush  V.  Bush,  33  Kan.  556,     -      484 

V.  Clark,  127  Mass.  Ill,    -     718, 

825,  828 

V.   Crawford,    7    Bankr. 

Reg.L299,        -        -        -       -      352 

V.  Guion,  6  La.  Ann.  797,      764, 

765 

v.  Linthicum,  59  Md.  344,      143, 

144,  147 
Butchart  v.   Dresser,  4  De  G. 
M.  &  G.  542;  10  Hare,  463,     693, 

707.  730,  731 
Butcher,  Ex  parte,  13  Ch.  D. 

465, 563 

V.  Forman,  6  Hill,  583,      -    1167 

Butler  V.  American  Toy  Co.  46 
Conn.  136,      -        134,  323,  333,  580 

V.  Burleson,  16  Vt.  176,    -     676, 

678 

V.  Finck,  21  Hun,  210,    43,  1135 

V.  Henry,  43  Ark.  551,      -     507, 

1159 

V.  Kirby,  53  Wis.  188,      -      746 

V.  Stocking,  8  N.  Y.  408,     349, 

362,  365 
Butner  v.  Lemly,  5  Jones'  Eq. 

(N.  Ca.)  148,  -       -        -       770,  775 
Butterfield,  Ex  parte,  De  Gex, 
570,         -        -        -        -       843,  844 

V.    Beardsley,    28    Mich. 

412,         -       -        -        -  72,  74,  931 

V.  Hemsley,  13  Gray,  226,     205, 

349,  438 

V.  Lathrop,  71  Pa.  St.  225,        68 

Button  V.   Hampson,    Wright 

(O.),  93,  ....      419 

xlyii 


But.] 


TABLE  OF  CASES. 


[Cam. 


Butts  V.  Genung,  5  Paige,  254,     749, 

750 

V.  Tiffany,  21  Pick.  95,     -     1146 

Buxton  V.  Edwards,  134  Mass. 

587,         -        -        519,  529,  701,  705 

V.  Lister,  3  Atk.  383,        -    1010 

Buzard  v.  First  Nat'l  B'k  (Tex. 

1886),  2  S.  W.  Rep.  54,  23,  43,  47 
Byam  V.  Bickford,  140  Mass. 

31, 296 

Bybee  v.  Hawkett,  12  Fed.  Rep. 

649;  SSawy.  176,  -  164,168 
Byers  v.  Bourret,  64  Cal.  73,  -  129 
V.  Van  Deusen,  5  Wend. 

268, 234 

Byington  v.  Gaff,  44  111.  510,  -      199 
V.  Miss.  &  Mo.  Riv.  R.  R. 

11  Iowa,  503,  -  -  -  1061 
V.    Woodward,     9    Iowa, 

360, 1159 

Byrd  v.  Charles,  3  S.  Ca.  352,       1081 

V.  Fox,  8  Mo.  574,     -       865,  870 

Byrne,  Re,  Bankr.  Reg.  464,    -      832 


546 


c. 

Cabaniss    v.    Clark,    31    Miss. 

423, 

Cabell  V.  Vaughan,  1  Saund. 

291, 1016 

Cadwallader  v.  Blair,  18  Iowa, 

420, 507 

V.   Kroesen,   22  Md.  200,     411, 

1044 
Cady  V.  Kyle,  47  Mo.  346,  330,  331 
V.  Shepherd,  11  Pick.  400 

(22  Am.  Dec.  379),  -      416,  701,  707 

V.  Smith,  12  Neb.  628,      -    1065 

Cahoon  v.  Hobart,  38  Vt.  244,     621, 

•     707 
Calder  v.  Rutherford,  8  Brod. 

&  Bing.  802;  7  J.  B.  Moore, 

158,         -       -       -        -      714,746 
Caldicott  V.  Griffiths,  8  Exch. 

898, 75 

Caldwell  v.   Auger,    4    Minn. 

217, 1105 


Caldwell  v  .  Bloomington  Mfg. 
Co.  17  Neb.  489,      189,  563,  563,  929 

V.  Hartupee,  70  Pa.  St.  74,     1080 

V.  Leiber,  7  Paige,  483,    -     269, 

763,  770,  777 

V.  Parmer,  56  Ala.  405,      291, 

293 

V.  Scott,  54  N.  H.  414,      -     562, 

1045,   1146 

V.  Sithens,  5  Blackf.  99,  -      197 

V.  Stileman,  1  Rawle,  212,     610, 

708,  747,  750 
Calhoun  v.  Albin,  48  Mo.  304,     900, 

904 
Calkins  v.  Smith,  48  N.  Y.   614     895, 
(8  Am.  Rep.  575),  896 

Callahan  v.   DonoUy,  45  Cal. 

152, 676 

Callender  v.  Robinson,  96  Pa. 

St.  454, 155 

Calloway  v.  Tate,  1  Hen.  &  M. 

(Va.)9,  ....      978 

Callum  V.  Bloodgood,  15  Ala. 

34, 401 

Calvert  v.  Marlow,  6  Ala.  337,      716 

V.  Marlow,  18  Ala.  67,     716,  722, 

V.  Miller,   94  N.  Ca.  600,     728, 

731,  773 
Calvit  V.   Markham,  3    How. 

(Miss.)  343,  -  -  -  900,905 
Cambefort  v.  Chapman,  19  Q. 

B.  D.  229,  -  -  -  -  535 
Camblat    v.    Tupery,    2     La. 

Ann.  10,  -  -  -  -  853 
Cambridge    Water   Wks.     v. 

Somerville  Dyeing,  etc.  Co. 

14  Gray,  193,  -  -  -  -  5 
Cameron  v.  Bickford,  11  Ont. 

App.  52,  -  110,  117,  120,  800 
V.  Canieo,  9  Bankr.  Reg. 

527, 173 

V.  Francisco,  26  Oh.  St. 

190,  -  -  -  770,  773,  774 
V.  Stevenson,  12  Up.  Can. 

C.  P.  389,  -  -  -  338,583 
V.  Watson,   10  Rich.  Eq. 

64,  -        -       -        761, 762,  816,  980 


zlviii 


Cam.] 


TABLE  OF  CASES. 


[Cab. 


Cammack  v.  Johnson,  2  N.  J. 

Eq.  163,  -  153,  154,  155,  840,  1109 
Camp  V.  Eraser,  4  Demarest 

(N.  Y.),  212,  -  -  -  -  715 
V.  Grant,  21  Conn.  41  (54 

Am.  Dec.  321),       -        749,  826,  828 

V.  Mayer,  47  Ga.  414,        -      555 

V.   Montgomery,   74  Ga. 

(1886), 56 


V.  Page,  42  Vt.  739, 


565 


Campbell  v.  Blanke,  13  Kan. 

62, 1067 

V.  Bowen,  49  Ga.  417,     325,  1094 

y.  Campbell,  7  CI.  &  Fin. 

166, 761 

V.  Campbell,  30  N.  J.  Eq. 

415,  -  .  .  .  297,  281 
V.  Colorado  Coal  and  Iron 

Co.  9  Colorado,  60,  -  163,  195 
V.  Coquard,  16  Mo.  App. 

552, 784 

V.  Dent,  54  Mo.  325,  23,  45, 

1149,  1152,  1153 
V.  Genet,  2  Hilt.  290,        -     1079 

V.  Hastings,  29  Ark.  512,       95, 

159,  1146,  1147,  1151,  1155 

Hood,  6  Mo.  211,       -    109, 1023, 

1139,  1145 

V.  Lacock,  40  Pa.  St.  448,      503 

V.  Mathews,  6  Wend.  551,       412 

V.  Moore,  3  Wis.  767,        -     1136 

V.  MuUett,  2  Swanst.  551,       70, 

269,  544 
V.  Pedan,  3  Up.  Can.  L.  J. 

68, 1113 

V.  Stewart,  34  111.  151,    543,  763 

V.  Whitley,  39  Ala.  172,  -        86 

Canada  v.  Barksdale,  76  Va. 

899,  ....  32,  974 
Canada    Lead     Mine    Co.    v. 

Walker,  11  Lower  Canada, 

433,  ....  377,  380 
Canal  Co.  v.  Gordon,  6   Wall. 

561,  ....  276,  383 
Candler  v.  Candler,  Jac.   225; 

6Madd.  141,  ....      110 

V.  Stange,  53  Mich.  479,      970 


Canfield  v.  Hard,  6  Conn.  180,     111, 

716 
Cannon  v.  Copeland,  43  Ala. 

201,         ....      735,  736 

V.  Dunlap,  64  Ga.  680,      -     456, 

1119 

V.  Wildman,  28  Conn.  472,     325, 

326,  384,  680,  683 
Cannopv.  Levy,  11  Q.  B.  769,  459 
Canon    v.    Campbell,   18    Pa. 

St.  164, 1169 

Cape  Sable  Company's  Case,  3 

Bland  (Md.  Ch.),  606,  -  577,  581 
Capelle  v.  Hall,  12  Bankr.  Reg. 

1, 348 

Capen  v.  Barrows,  1  Gray,  376,      863 

872,  873,  889 
Card  V.  Phoenix  Ins.  Co.  4  Mo. 

App.  424,  ....  271 
Carey  v.  Bright,  58  Pa.  St.  70,  1053 
V.  Burruss,  20  W.  Va.  571 

(43  Am.  Rep.  790),  -      136,  137 

Carfraev.Vanbuskirk,l  Grant's 

Ch.  (Up.  Can.)  539,        -  1151 

Cargill  V.  Corby,    15  Mo.  425,     322, 

323,  348 
Carillon  v.  Thomas,  6  Mo.  App. 

573, 1105 

Carl  V.  Knott,  16  Iowa,  379,  629 

Carleton  v.  Jenness,  43  Mich. 

110,  _ 727 

Carlew  v.  Drury,  1  Ves.  &  B. 

157, 73 

Carley  v.  Jenkins,  46  Vt.  731,      834 
Carlin  v.   Donegan,   15   Kan, 

495,  -  -  761,  780,  937,  969 
Carlisle    v.    Mulhern,  19    Mo. 

56, 281 

V.   Niagara  Dock    Co.   5 

Up.  Can.  Q.  B.  (Old  Ser.)  660,     326, 

381 

V.  Tenbrook,  57  Ind.  529,     231, 

815 
Carlon  v.  Ruffner,  13  W.  Va. 

297,  ....  1086,  1093 

Carlton  v.  Cummings,  51  Ind. 

478,         ....      571,  80 


xlix 


Car.] 


TABLE  OF  CASES. 


[Cas. 


Carlton  V.  Ludlow  Woolen  Mill, 

27  Vt.  496,    703,  704,  705,  1155, 1158 
V.  Ludlow  Woolen    Mill, 

28  Vt.  504,     -        -      704,  705,  1150 

V.    Mays,   8  W.   Va.  245,     1170 

Carlyle  v.  Plumer,  11  Wis.  96,     1143 
Carmichael  v.   Greer,   55  Ga. 

116,        -        -        -     616,  1144,  1154 
Carries  v.  White,  15  Gray,  378,     834, 

372,  406 
Carney  v.  Hotchkiss,  48  Mich. 

276,  -       .       -        -      199,  441 

Carpenter,  Ex  parte,  1  Mont. 

&  Mac.  1,        -       -        -      560,  846 

V.  Wells,  65  III.  451,  -      869 

Carper  v.  Hawkins,  8  W.  Va. 

291, 972 

Carr  v.  Catlin,  13  Kan.  393,    733,  734 

V.  Leavitt,-54  Mich.  540,  -      301 

V.  Roberts,  5  B.  &  Ad.  78,     638, 

640 

V.  Smith,  5  Q.  B.  128,       -      861 

V.  Wilkins,  44  Tex.  424,   -     1025 

Carrere  v.  Spofford,  46  How. 

Pr.  294,  -        -        714,  715,  746 

Carrier  v.  Cameron,  31  Mich. 

3T3  (18  Am.  Rep.  192),        341,  361, 

1069 
Carrillon    v.    Thomas,  6    Mo. 

App.  574,  -  -  -  -  1101 
Carrington  v.  Cantillon,  Bunb. 

107, 1085 

Carrithers  v.  Jarrel,  20  Ga.  842,     228, 

431 
Carroll  v.  Alston,  1  S.  Ca.  7,   599,  798 

V.  Evans,  27  Tex.  262,     585,  950 

V.  Gayarre,   15  La.  Ann. 

671, 704 

V.  Martin,  35  Ga.  261,       -    1002 

Carruthers     v.    Ardagh,     20 

Grant's  Cb.  (Up.  Can.)  579,  538 
Carson  v.  Byers,  67  Iowa,  606,  453 
Carter,  Ex  parte,  2  Gl.  &  J. 

233, 843 

V.  Adamson,  21  Ark.  287,     636, 

639 
V.  Bailey,  64  Me.  458,        -        69 


Carter  v.  Beeman,  6  Jones  (N. 
Ca.).  L.  44,     -       -       -      427,  429 

V.  Bradley,  58  111.  101,     974,  975 

V.  Connell,  1  Whart.  393,     385, 

1162,  1166 

V.    Currie,   5  Call  (Va.), 

158, 714 

V.  Douglass,  2  Ala.  499,   -    1155 

V.  Galloway,  36  La.  Ann. 

473, 5G6 

V.  Lipsey,  70  Ga.  417,       -      486 

V.  Pomeroy,  80  Ind.  438,       698 

V.  Roland,  53  Tex.  540,     -     584, 

801,  1111,  1113 

V.  Southhall,  5  M.  &  W. 

128, 397 

V.  Whalley,  1  B.  &  Ad.  11,     608, 

609,  1157 
Carver  v.  Dows,  40  111.  374,  -  348 
Gary  v.  Williams,  1  Duer,  667,     277, 

894 
Casco  Bank  v.  Hills,    16  Me. 

155, 94 

Case  V.  Abeel,  1  Paige,  393,    -      744 

v.  Baldwin,  136  Mass.  90,     1147 

v.  Beauregard,  1    Woods, 


C.  C.  125  (99  U.  S.  119),      486,  560, 

824 

V.  Beauregard,    99   U.   S. 

119  (1  Woods,  C.  C.  125),     560,  824 

V.  Cushman,  3  Watts  &  S. 

544  (39  Am.  Dec.  47),     632,  644,  961 

V.  Fish,  58  Wis.  56,       105-7,  114 

V.  Maxey,  6  Cal.  276,        -      850 

Casebolt  v.  Ackermau,  46  N.  J. 

L.  169, 705 

Casey  v.  Brush,  2  Caines,  293,      849 

v.  Carver,  42  111.  225,     383,  428, 

1037 
Cash  v.  Earushaw,  66  111.  403,      591, 

592 

V.  Tozer,  1  Watts  &  S.  519,     377, 

878 
Cassels  v.  Stewart,  L.  R.  6  App. 

Cas.  64, 308 

Cassidy  v.  Hall,  97  N.  Y.  159,       23, 
36,  47,  91,  95,  101 


1 


CAS.J 


TABLE  OF  CASES. 


[Cha. 


Castle  V.  Bullard,  23  How.  172,    474, 

480,  1094 

V.  Reynolds,  10  Watts,  51,     380, 

727 
Castly  V.  Towles,  46  Ala,  600,  923 
Caswell   V.    Cooper,     18     111. 

532,         -       .        -       -       -      892 

V.  Howard,  16  Pick.  562,      549 

Catlin  V.  Gilders,  3  Ala.  536,     2,  319, 

698 
Caton,  In  re,  24  Up.  Can.  C. 

P.  308, 562 

Catron    v.   Shepherd,    8  Neb. 

308,  ....  311,  790 
Catskill  Bank  v.  Gray,  14  Barb. 

471  (s.  c.  at  a  later  stage,  5 

Gray,  574),      -        -        -      133,  134 


133, 
825 

385 


V.  Hooper,  5  Gray,  574,    - 

V.  Messinger,  9  Cow.  37, 

V.    Stall,    15    Wend.    364 

(affd.    in    Stall    v.     Catskill 

Bank,  18  id.  466),  -  -  -  352 
Caulfleld  v.   Sanders,   17  Cal. 

569, 401 

Causten  v.  Burke,  2  Har.  &  G. 

295  (18  Am.  Dec.  297),  -  -  854 
Causler  v.  Wharton,   62  Ala. 

358,  ....  301,  1171 
Caussey  v.  Baily,  57  Tex.  665,  1121 
Cavander   v.  Bulteel,  L.  R.  9 

Ch.  App.  79,  -  185,  186,  291,  295 
Cavitt  V,  James,  39  Tex.  189,  731 
Cay  ton  v.  Hardy,  27  Mo.  536,     401, 

403,  404 
Cayuga  Bank  v.  Hunt,  2  Hill, 

635, 397 

Central    City    Sav.    Bank    v. 

Walker,  66  N.  Y.  424  (aff.  5 

Hun,  34),  -  -  -  -  4.  23 
Central  Sav.  Bank  v.    Mead, 

52  Mo.  546,  -  -  694,  696,  727 
Central  R.  R.  &  Banking  Co. 

V.  Smith,  76  Ala.  572,      1147,  1151, 

1155,  1157,  1158,  1160 

Chace  v.  Hinman,  8  Wend.  452,     638, 

639,  640 


Chadsey  v.   Harrison,    11   111. 

151,  -  .  -  434,  849,  881 
Chaffe    V.    Ludeling,    27    La. 

Ann.  607,        ....  5 

Chaffee  v.  Jones,  19  Pick.  260,       173 

V.  Rentf roe,  32  Ga.  477,    -   1147, 

1154 
Chaffin  V.  Chaffin,  2  Dev.  & 

Bat.  Eq.  255,  -       361,  630,  934 

ChafiFraix    v.    Lafitte,    30    La. 

Ann.  Pt.  I,  631,     -        -    23,  29,  43 

V.  Price,  29  La.  Ann,  176,        43 

Chaffy,  In  re,  30  Up.  Can.  Q. 

B.  64,  -  -  -  841,  882,  884 
Chalfant     v.     Grant,     3    Lea 

(Tenn.),  118,  -  -  560,  1131,  1133 
Chalk  V.  Bank,  87  N.  Ca.  200,  933 
Chamberlain  v.  Dow,  10  Mich. 

319, 609 

V.  Hite,  5  Watts,  373,       -    1019 

V.  Jackson,  44  Mich.  320,     1135 

V.  Madden,  7  Rich,  (S.  Ca,) 

L.  395,     -        -        -       420,  438,  525 

V.  Walker,  10  Allen,  429,     868, 

878 
Chamberlin  v.  Chamberlin,  12 

Jones  &  Sp.  (N.  Y.)  116,  282,  286 
V.  Madden,  7  Rich.  (S.  Ca,) 

L.  20, 1163 

V.  Prior,  2  Keyes,  539;  1 

Abb.  App.  Dec.  338,  •  473a,  897 
Chambers     v,    Clearwater,    1 

Keyes,    310;    1    Abb,    App. 

Dec.    341     (affg.     41     Barb. 

200),        .... 

V.  Crook,  42  Ala.  171, 

V.  Howell,  11  Beav.  6, 


465 
810 
743 

Chambovet  v.  Cagney,  35  N. 

Y.  Superior  Ct.  474.  -  -  139 
Cliampion    v.    Bostwick,      18 

Wend.    175    (31    Am.    Dec. 

376),  -  -  67,  257,  462,  463 
V.      Mumford,      Kirby 

(Conn,),  170,  -  -  -  341,  1068 
Charaplin   v.    Tilley,    3    Day, 

303,  -  .  .  1094,1143,  1154 
Chandler,  Ex  parte,  9  Ves.  35,       825 


Cha.J 


TABLE  OF  CASES. 


[Chb. 


Chandler  v.  Brainard,  14  Pick. 

285, 79 

V.  Chandler,  4  Pick.  78,     1G7, 

945,  948 

V.  Drew,  6  N.  H.  469,       -    1083 

V.  Herrick,  19  Johns.  129,      386 

V.  Higgius,  109  111.  602,    -      532 

V.  Lincoln,  52  111.  74,     1105,  1111 

V.  Parkes,  8  Esp.  76,        -      148 

V.  Sherman,  16  Fla.  99,     813,372, 

761,  982,  986 

V.  Wilson,  52  111.  74,  -    1112 

Channel  v.  Fassitt,  16  Oh.  166,     164, 

166 
Channon  v.  Stewart,  103  111. 

541, 922 

Chapin  v.  Clemitson,  1  Barb. 

311,  .        -        -        .       265,  382 

V.  Coleman,  11  Pick.  331,      331 

Chapline  v.  Couant,  8  W.  Va. 

507,        -       -       -        -     23,  29,  45 
Chapman  v.  Beckinton,  3  Q. 

B.  703,  -        -        -        580,  649,  651 

V.  Chapman,  13  R.  L  680,       736 

V.  Devereux,  32  Vt.  616  (9 

Am.  Law  Reg.  (O.  S.)  419),    72,  323 

324,  446 

V.  Eames,  67  Me.  452,       -  31,  62 

V.  Koops,  3  B.  &  P.  289,       928 

V.  Lipscomb,  18  S.  Ca.  222,        61 

V.  Wilson,   1    Rob.   (Va.) 

267,         ....       26,  1147 
Chappell  V.  Allen,  38  Mo.  213,     531, 

690,  C91 

V.  Cox,  18  Md.  513,   -    259,  1110 

Chardon  v.  Olipbant,   3  Brev. 

183  (6  Am.  Dec.  572),     -       -      701 
Charles  v.    Eshelmau,    5  Col- 
orado, 107,      -      329,  334,  825,  828 
Charleston  Fruit  Co.  v.  Bond, 

26  Fed.  Rep.  18,  -       -        -      250 
Charlesworth  v.  Jennings,  34 

Beav.  96,        -        -        -        -      595 
Charllon  v.  Poulter,   cited  in 

note  to  19  Ves.  148,        -      314,  990 
Charman  v.  Henshaw,  15  Gray, 

293, 191 


Charman  v.  McLane,  1  Oregon, 

339, 350 

Chase  v.  Barrett,  4  Paige,  143,       37, 

43,  257 

V.  Bean,  58  N.  H.  183,      -    1046 

V.  Buhl    Iron  Works,   55 

Mich.  139,       -        -        -       383,  410 

V.  Deming,  42  N.  H.  274,     151, 

1052 

V.  Garvin,  19  Me.  211,      -      888 

V.  Kendall,  6  Ind.  304,      -      695 

V.  Scott,  33  Iowa,  309,      -      276 

V.  Steel,  9  Cal.  64,     -       -      184 

V.  Stevens,  19  N.  H.  465,     1135, 

1150 

V.  Vaughan,  30  Me.  412,     505, 

519 
Chavener  v.  Wood,  2  Oregon, 

182,  -  -  -  -  -  296 
Chazournes    v.     Edwards,     3 

Pick.  5, 863 

Cheap  V.  Cramond,  4  B.  &  Aid. 

663,  ....  16,  384 
Cheeny  v.  Clark,  3  Vt.  431,  -  75 
Clieeseman  v.  Sturges,  6  Bosw. 

520 ;  9  id.  246,  -  .  -  791 
v.  Wiggins,   1  Thomp.  & 

C.  595,  .  .  .  739,  923,  937 
Cheesman  v.  Price,   35  Beav. 

142, 591 

Cheetham  v.  Ward,  IB.  &  P. 

630, 385 

Cheever  v.  Lamar,  19  Hun,  130,      978 
Chemung  Canal  Bk.  v.  Brad- 

ner,  44  N.  Y.  680,  -  -  349,  860 
Chenango  Bank  v.    Hyde,    4 

Cow.  567,        ...  368 

Cheney  v.  Newberry,  67  Cal. 

126, 129 

Chenowith  v.    Chamberlin,    6 

B.  Mon.  60  (43  Am.  Dec.  145),     172, 

349,  358,  363 
Cheshire,  The,  8  Wall.  231,  .  114 
Cliester  v.  Dickerson,  54  N.  Y. 

1  (13  Am.  Rep.  550),  (affg.  52 

Barb.  849;  45  How.  Pr.  320).     150, 
279,  299,  302,  473 


ill 


Chi.  J 


TABLE  OF  CASES. 


[CiT. 


Chicago  V.  Garrity,  7  111.  App. 

474, 661 

Chicago,  Burlington  &  Quincy 

R.   R.  V.   Hoyt,  1   111.  App. 

374, 433 

Chicago  Life  Ins.  Co.  v.  Audi- 
tor, 101  111.  82,  -  -  -  661 
Chicago  Lumber  Co.  v.  Ash- 
worth,  26  Kan.  212,  -  -  296 
Child  V.  Swain,  G9  Ind.  230,  872,  897 
Childress  v.  Emory,  8  Wheat. 

642, 1070 

Childs  V.  Hyde,  10  Iowa,  294,   725,  749 

V.  Seabury,  35  Hun,  548,        645 

V.  Walker,  2  Allen,  259,  -     522, 

558,  643,  655 
Chipley  v.  Keaton,  65  N.  Ca. 

534, 544 

Chipman,  In  re,  14  Johns.  217; 

16  id.  102,  -  -  -  -  1117 
Chippendale,  Ex  parte,  4  De  G. 

M.  &  G.  19,  -  320,  766,  769,  785 
Chisholm  v.    Cowles,  42  Ala. 

179,         -        -  1135,  1136,  1139 

Chissum  v.  Dewes,  5  Russ.  29,  657 
Chittenden  v.  German  Amer. 

Bk.  27  Minn.  148,   -        -        -      291 

V.  Witbeck,  50  Mich.  401,       305, 

659,  768,  794,  798,  976 
Choppinv.  Wilson,  27  La.  Ann. 

444,  ....  584,  756 
Chouteau  v.  Barlow,  110  U.  S. 

238, 944 

V.  Raitt,  20  Oh.  132,  26,  153, 

1018,  1022,  1158,  1162 
Christian  v.  Crocker,  25  Ark. 

327, 43,  59 

V.  Ellis,  1  Gratt.  396,        -    1114 

Christie,  Ex  parte,  3  M.  D.  & 

De  G.   736  (reversed   as   Ex 

parte  Clark,   DeG.  153;  s.  C. 

as  Ex  parte  Buckley,  14  M. 

&  W.  469 ;  1  Ph.  562),  -  -  846 
V.    Clarke,    16  Up.    Can. 

Com.  PI.  544,  -        -        -      668 

Christman    v.  Baurichter,    10 

Phila.  115,      -        -        -        -      181 


Christy  v.  Sherman,  10  Iowa, 

535,  ...  -  377,  880 
Chubruck  v.  Vernam,  42  N.  Y. 

432,  -  -  -  -  962,  964 
Chuck,  Ex  parte,  8  Bing.  469,         55, 

155,  556,  558 
Church  V.  First  Nat'l  Bank,  87 

111.  68,    -        -        -       -    1037,  1039 

V.  Knox,  2  Conn.  514,      -    1103 

V.  Sparrow,  5  Wend.  223,     348, 

447 
Churchill    v.    Bailey,    13    Me. 

64, 1165 

V.  Bowman,  39  Vt.  518,     -      565 

V.  Proctor,  31  Minn.   129,     185, 

291.  295,  927 
Churchman  v.  Smith,  6  Whart. 

146,  ....       322,  983 

Churton    v.    Douglas,    H.    V. 

Johns.  174;  5  Jur.  N.  S.  887; 

28  L.  J.  Ch.  841,     191,  663,  664,  669, 

670,  671 
Cilley  V.  Huse,  40  N.  H.  358,     281,  300 

V.  Van  Patten,  58  Mich. 

404, 879 

Cinnamond  v.  Greenlee,  10  Mo. 
578,  ....         70,  875 

Citizens'  Bank  v.  Hine,  49  Conn. 
236,         ...         83,  507,  509 

Citizens'  Mut.  Ins.  Co.  v.  Ligon, 
59  Miss.  305,  52,  53,  603,  727, 

741,  1000 

City  Bk.  of  Brooklyn  v.  Dear- 
born, 20  N.  Y.  244,        -        -    1160 

V.  McChesney,  20  N.  Y. 

240,  ....  613,  618 
City    Bank    of  New  Haven's 

Appeal  (Conn.),  7  Atl.  Rep. 

548, 453 

City  Bank  of  New  Orleans  v. 

Stagg,  1  Handy,  382,  -  -  173 
City  Discount  Co.  v.  McLean, 

L.  R.  9  C.  P.  692,  -  -  489,  497 
City  Fire  Ins.   Co.  v.  Doll,  35 

Md.  89, 257 

City  of  Glasgow  Bank  v.  Mur- 

dock,  11  Up.  Can.  C.  P.  138,       861 


liii 


C3LA.J 


TABLE  OF  CASES. 


[Cla. 


Claflin  V.  Butterly,  3  Abb.  Pr. 

446, 1094 

Clagett  V.  Kilbourue,  1  Black, 

346.  73,  379,  303.  937,  938,  1111 

V.  Salmon,  5  Gill    &  J. 

314,  -  -  -  -  -  386 
Clan  ton  v.  Price,  90  N.  Ca.  96,     837, 

453 

Clap,  Re,  3  Lowell,  168,  -     601,  739, 

746,  794,  838,  933,  939 

,  2  Low.  236,      -        505,  533,  539 

Clapham  v.  Crabtree,73  Me.  473 

(Crabtree  v.  Clapham,  67  id. 

335), 274 

Clapp  V.  Rogers,  12  N.  Y.  283 

(aff.  1  E.  D.  Smith,  549),       613,  614 

V.  Upson,  13  Wis.  493,      -      634 

Clark's  Appeal,  73  Pa.  St.  143,  360 
Clark,  Re,  3  D.  &  R.  860,  -  110 
V.  Allee,  3  Harr.  (Del.)  80,     1114 

V.    Billings,    59  Ind.  508,     505, 

519 
V.  Brooks   (Pa.  Com.   PL 

1887),  19  Weekly  Notes,  333,  505 
V.  Clark,  4  Porter  (Ala,), 

9,    -        -        -        635,  636,  637,  879 

V.  CuUen,  9  Q.  B.  D.  355,     1066 

V.  Cashing,  53  Cal.    617,    1101, 

1105 

V.  Dearborn,  6  Duer,  309, 

V.   Dibble,  16  Wend.  601, 

V.  Dunnam,  46  Cal.  305, 


363 

858 
787, 

970 
1063 
150, 


V.  Evans,  64  Mo.  358, 

V.  Fletcher,  96  Pa.  St.  416, 

153,  619,  633 

V.  Fowler,  57  Cal.  143,      -      634 

V.  Gilbert,  33  Barb.  576,  -        43 

V.  Gridley,  41  Cal.  119,    910,  957 

V.  Gridley,  49  Cal.  105,     38,  979 

V.  Holmes,  3  Johns.   148,     151, 

1053 

V.  Houghton,  13  Gray,  38,     184, 

201,  407 

V.  Howe,  23  Me.  560,        -      732 

V.  Huflfaker,  26  Mo.   364,    1143, 

1143 


Clark  V.  Hyman,  55  Iowa,  14,      849, 

365,  43» 

V.  Johnson,  90  Pa.  St.  443,      353 

V.  Jones,  50  Cal.  435,        -      758 

V.   Kensall,  Wright   (O.), 

480,         ....  1067,  1154 
V.  Leach,    33    Beav.    14 

(affd.    in  1  De  G.  J.  &  Sm. 

409),        -        316,  318,  341,  663,  667 
V.  McClelland,  3  Grant's 

Cas.  (Pa.)  31,  -       -       -      339,  560 
V.  McKellar,  13  Up.  Can. 

C.  P.  563,       ....       42 

V.  Rives,  33  Mo.  579,       401,  406 

v.  Smith,  52  Vt.  529,     87,  43,  61 

V.    Sparhawk,    2  Weekly 

Notes  (Pa.),  115,     -       383,  410,  430 

V.  Stoddard,  3  Ala.  366,   •  1088, 

1093 

V.  Taylor.  68  Ala.  453,      -    1151 

V.  Thompson,  43  Tex.  138,     1087 

V.  Warden,  10  Neb.  87,     -      781 

V.  Watkins,  9  Jur.  N.  S. 

143;  8L.  T.  8;  11  W.  R.  319, 

V.  Wilson,  15  N.  H.  150,  - 

V.  Wilson,  19  Pa.  St.  414, 


677 
1127 
339, 
570.  585,  688 
Clarke's  Appeal,  107  Pa.  St.  436,     551, 

965 
Clarke,  Ex  parte,  De  Gex,  153 
(s.  c.  as  Ex  parte  Buckley,  14 
M.  &  W.  469;  1  Ph.  562); 
reverses  s.  c.  as  Ex  parte 
Christie,  3  M.  D.  &  D.  736, 


-,  Ex  parte,  4  Ves.  677, 
-V.  Gridley,  41  Cal.  119,     - 
-V.  Hart,   6  H.  L.  C.    633 


(affg.  Hart  v.  Clarke,  6  De  G. 
M.   &  G.  233,  and  reversing 
19  Beav.  349), 
—  V.  Lord  Abingdon,  17  Ves. 


106,         .        .        .        .        . 
—  V.  Ware,  8  Ky.  Law  Rep. 


438, 

Clarkson  v.  Carter,  3  Cow.  84, 
Clay,  Ex  parte,  6  Ves.  813,      - 


200, 
846 
835 
931 


241 

25a 

28 

1022 

825 


liv 


Cla.] 


TABLE  OF  CASES. 


[Coc. 


Clay,  Ex  parte,  2  De  G,  M.  &  G. 
230, 833 

V.  Giubb,   1  Litt.   (Ky.) 

222, 278 

V.  Van  Winkle,  75   Ind. 

239,  ...        -       137,  139 

Clayton's  Case.    See  Devayues 

V.  Noble. 
Clayton  v.  Kynaston,  2  Salk. 

573, 885 

V.  May,  67  Ga.  769,  -        -      686 

V.  May,  63  Ga.  27,     -    848,  1064, 

1130 

V.  Thompson,  13  Ga.  206,       331 

Cleather  v.  Tvvisden,  24  Ch.  D. 

731 ;  28  id.  340,  -  -  -  477 
Clegg  V.  Edmondson,  8  De  G., 

M.  &  G,  787,  ....  305 
V.  Fisliwick,  1  Mac.  &  G. 

294,         -        -        -       304,  305,  996 

V.  Houston,  1  Phila.  352,     1131 

Cleghorn     v.     Ins.    Bank     of 

Columbus,  9  Ga.  319,     -        -      847 

V.  Johnson,  11  Iowa,  293,     1154 

Clement    v.      British     Amer. 

Assur.  Co.  141  Mass.  298,      -     409, 

437,  443 
V,  Brush,   3  Johns.   Cas. 

180,  ...  -  420,  421 
V.  Foster,  3  Ired.  (N.  Ca.) 

Eq.  213,  -        -        544,  928,  929 

V.  Hadlock,  13  N.  H.  185,     39,  43 

Clements  v.  Bowes,   1   Drew. 

684, 955 

V.  Bowes.  17  Sim.  167,     -      914 

V.  Hall,  2  De  G.  &  J.  173,     304, 

309,  801 

V.  Jessup,   36  N.  J.  Eq. 

572,         -        -    256,  506,  1111,  1112 

V.  Lee,  8  Tex.  374,     -        -      951 

V.  Mitchell,  Phil.  (N.  Ca.) 

Eq.  3, 980 

V.  Norris,  8  Ch.  D.  129,  -      320 

Cleveland    v.    Woodward,    15 

Vt.  302  (40  Am.  Dec.  682),  .  1053 
Cleverdon,   Re,   4    Ont.    App. 

185,         ...       785  786,  846 


Click  V.  Click,  Minor  (Ala.),  79,  1091 
Clifton  V.  Howard,  89  Mo.  193,  29 
Cline  V.  Caldwell,  4  La.  137,  -  43 
V.  Wilson,  26  Ark.  154,     -  78 


Clinton  Lumber  Co.  v.  Mitchell, 

61  Iowa,  132,  -        -        -    1154 

Clonan  v.  Thornton,  21  Minn. 

380,  ....  854,  1138 
Clouch    V.    Moyer,     23     Kan. 

404, 960 

Clough,  In  re,  31  Ch.  D.  324.     -      731 

V.  Hoffman,  5  Wend.  499,     635, 

640 
Coakley  v.  Weil,  47  Md.  277,  -     559, 

560,  503,  824 
Coalter  v.  Coalter,  1  Rob.  (Va.) 

79,  ...  943,  943,  945 
Cobb  V.  Abbot,  14  Pick.  289,  -  67 
V.  L  C.  R.  R.  Co.  38  Iowa, 

601,  ....  463,  1034 
Cobble  V.  Tomlinson,  50  Ind. 

550,  -  -  293,  300,  580,  715 
Cochran  v.    Cunningham,    16 

Ala.  448  (50  Am.  Dec.  186),        700, 

1035,  1037 

V.  Perry,  8  Watts  &  S.  262,       72, 

577,  585 
Cochrane  v.  Allen,  58  N.  H. 

250, 858 

V.  Stewart,  63  Mo.  424,    522,  655 

Cock  V.  Carson,  45  Tex.  429,   -     604, 

727 
V.  Evans,  9  Yerg,  (Tenn.) 

287, 255 

Cockburn    v.    Thompson,    16 

Ves.  321,  ....  1028 
Cocke    V.    Bank    of    Tenn.    6 

Humph.  51,  ...  398 
V.  Branch  Bank  at  Mobile, 

3  Ala.  175,      -        329,  341,  343,  345 

V.  Hoffman,  5  Lea,  105,    703,  706 

V.  Upshaw,  0  Munf.  (Va.) 

464, 749 

Cockerell  v.  Aucompte,  2  C.  B. 

N.  S.  440,  ....  75 
Cockrell  v.  Thompson,  85  Mo. 

510,         -        -        -     761,  853,  1081 


Iv 


Coc] 


TABLE  OF  CASES. 


[(DOL. 


Cockroft  V.   Claflin,  64  Barb. 

464  (aff'd  without  op.  53  N. 

Y.  618),  ...  -  365,  367 
Cocks  V.  Nash,  9  Bing.  841,  -  385 
Codding,  Re,  9  Fed.  Rep.  849,  292 
Coddington  v.    Hunt,   6  Hill, 

595,         -       -       -       621,  622,  624 

V.  Idell,  29  N.  J.  Eq.  504,      766, 

770,  785 

V.  Idell,  30  N.  J.  Eq.  540,      788 

V.  Tappan,  26  N.  J.   Eq. 

141, 995 

Coder  v.  Huling,  27  Pa.  St.  84,  790 
Codman  v.  Armstrong,  28  Me. 

91, 381,  490 

V.  Rogers,  10  Pick.  112,    -     948, 

947,  951,  952 
Cody  V.  Cody,  31  Ga.  619,  585,  1167 
Coe  V.  Cook,  8  Whart.  569,  -  70,  71 
Coffee    V.     Eastland,      Cooke 

(Tenn.),  158,  -  -  -  1050,  1072 
Coffey  V.  Brian,    10  Moo.  341 

(S.  C.  as   Coffee  v.    Brian,  3 

Bing.    54;  former  report  is 

fuller),  ....  876,  878 
Coffin's  Appeal,  106  Pa.  St.  280,  567 
Coffin  V.  Jenkins,  3  Story,  C. 

C.  lOS, 59 

V.   McCullough,   30  Ala. 

107,  -  -  558,  567,  645,  824 
Coffing  V.  Taylor,  16  111.  457,  629 
Coggswell  V.   Cavis,  65   Wis. 

191,         -        -        -      623,  627,  1156 

V.    Wilson,    11    Oregon, 

371, 86 

Coit  V.  Owen,  2  Dessaus.  456,  -  1160 
Colbeck,  In  re,  Buck,  48,  -        55 

Cole  V.  Butler,  24  Mo.  App.  76,        95 

V.  Moxley,  12  W.  Va.  730,       27, 

572,  577,  796 

V.  Reynolds,  18  N.  Y.  74,     900. 

904,  905,  1027 
Colehour  v.  Coolbaugh,  81  111. 

29, 976 

Coleman   v.    Bellhouse,  9  Up. 

Can.  C.  P.  31,  -  3:23,  458,  459 
V.  Coleman,  78  Ind.  344,     5,  531 


Coleman  v.  Coleman,  12  Rich. 

(S.  Ca.)  L.  183,       -        -      879,  893 

V.  Darling,  g66  Wis.  155,   -     838, 

889 

V.  Eyre,  45  N.  Y.  38,         2,  169, 

208 
V.  Garlington,    2    Spears 

(S.  Ca.),  L.  238,       -        -        -      784 
V.  Lansing,  65  Barb.  54 ;  1 

Thorn  p.  &  C.  8,      -        -       -      640 

V.  Pearce,  26  Minn.  123,  -     473, 

510,  511 
Coles  V.  Coles,  15  Johns.  159  (8 

Am.  Dec.  231),        -        -     287,  868 

V.  Gurney,   1  Madd.  187,     1085 

Colgate    V.   Colgate,  23  N.  J. 

Eq.  372,  ...       -     744,  801 
Colgin   V.    Cummins,    1  Port. 

(Ala.)  148,        -       -     772,  774,  789 
Colgrove  v.  Tallman,  67  N.  Y. 

95  (23  Am.  Rep.  90),  (aff.  3 

Lans.  97;  5  Hun,  103),  -      534 

CoUamer  v.  Foster,  26  Vt.  754,     874, 

876,  889,  892 
Collender  v.  Phelan,  79  N.  Y. 

366,  -        -        -       549,  785,  795 

CoUett  V.  Smith  (Mass.),  10  N. 

E.  Rep.  173,   -        -        -        -      381 
Colley  V.  Smith,  2  Moo.  &  Rob. 

96, 

Collie,  Re,  3Ch.  D.  481,   - 
Collier,  Re,  12  Bankr.  Reg.  266, 
V.  Cairns,  6  Mo.  App.  188, 


851 
842 
832 
726, 
734 


V.  Chadwick,  not  yet  re- 


666 


ported,   -        -        -        - 

V.  Cross,  20  Ga.  1,      1078,  1159, 

1160 
Collinge,  Ex  parte,  4  D.  J.  & 

S.  533, 843 

Collins'  Appeal,  107  Pa.  St.  590,       548 
Collins  V.  Butler,  14  Cal.  223,     268, 

1079,  1084 
V.  Charleston  Mut.  F.  Ins. 

Co.  10  Gray,  155,     -      265,  284,  457 

V.  Collins,  26  Beav.  300,   -      247 

V.  Decker,  70  Me.  23,        -      282 


Ivi 


Col.] 


TABLE  OF  CASES. 


[Con. 


Collins  V.  Dickinson,  1  Hayw. 

(N.  Ca.)  240,  -        -       -        571,  577 

V.  Hood,  4  McLean,  186,      562, 

563 
— —  V.  Jackson,  31  Beav.  645,       181, 

269 

V.  Jackson,  54  Mich.  186,      657 

V.  Owens,  34  Ala.  66,        -      810 

V.  Warren,  29  Mo.  286,     -     290, 

291 
Collomb  v.^  Caldwell.  16  N.  Y. 

484,  1  ....  569 
Colloway  T.  Tate,  1  Hen.  &  M. 

(Va.)9,  ....      978 

Collumb  V.  Read,  24  N.  Y.  505,     283, 

284,  285,  298 
Collyer  v.  Moulton,  9  R.  I.  90,  505 
Colnaghi  v.  Bluck,  8  C.  &  P. 

464,  ....  286,  709 
Colt  V.  Lasnier,  9  Cow.  320,  -  483 
V.    Wilder,    1   Edw.    Cli. 

484,  ....      504,  510 

Columbian      Government     v. 

Rothschild,  1  Sim.  94,  -      938 

Columbian  Mfg.  Co.  v.  Dutch, 

13  Pick.  125,  ....  1167 
Colville  V.  Oilman,  13  W.  Va. 

314, 910 

Col  well  V.   Britton,  26  N.  W. 

Rep.  538 ;  59  Midi.  350,  -  23 
Combs  V.  Boswell,  1  Dana,  473,      323, 

383,  681,  684 
V.  Shrewsbury  Ins.  Co.  39 

N.  J.  Eq.  403,  -        -      273 

Comer  v.  Thompson,    4    Up. 

Can.  Q.  B.  (Old  Ser.)  256,  -  880 
Commercial   B'k  v.  Lewis,  13 

Sm.  &  Mar.  (Miss. )  226,      401,  406 

V.  Mitchell,  58  Cal.  42,     -     189, 

928,  1114 

V.  Wilkins,  9  Me.  28,      186,  1102 

1112,  1114 
Commercial  Nat.  Bank  v.  Proc- 
tor, 98  111.  558,      343,  376,  401,  633, 

726 
Commercial  &  Sav.  B'k  v.  Cor- 

bett,  5  Sawy.  543,         -      560,  1131 


Commonwealth  V.  Bennett,  118 

Mass.  443,       ...        -  43 

V.  Sumner,  5  Pick.  300,    -  894 

Comstock     V.    Buchanan,     57 

Barb.  127,       -        -        -        -  303 

V.  Hier,  73  N.  Y.  269,        -  1170 

V.  White,  31  Barb.  801,    974,  977 


Conant  v.  Frary,  49  Ind.  530,      184, 

185 
Condy  v,  Mitchell,  87  L.  T.  N. 

S.  766;  26  W.  R.  269  (affg.  37 

L.  T.  N.  S.  268),      -        -        -      675 
Conery  v.  Hayes,  19  La.  Ann. 

325,  -    *    -        .        .        -      700 

Congdon  v.   Monroe,    51   Tex. 

109, 1094 

Conger  v.  Cotton,  37  Ark.  286,      647 
V.  Piatt,  25  Up.  Can.  Q.  B. 

277,  -        -        -       281,  290,  294 

Conkey  v.    Barbour,    22    Ind. 

196,  * 703 

Conklin  v.   Barton,   43   Barb. 

435,  -        -        -    37,  43,  98,  257 
V.   Cabanne,   9  Mo.  App. 

579, 1019 

v.^  Harris,  5  Ala.  213,     456,  1119 

V.  Leeds,  58  111.,  178,         -      275 

V.  Ogborn,  7  Ind.  553,    694,  695, 

698 
Conley   v.    Chapman,    74    Ga. 

709, 1089 

Couuecticut,    etc.    Ins.  Co.  v. 

Bowler,  1  Holmes,  263,  -      653 

Connecticut      River     B'k     v. 

French,  6  Allen,  313,     -       352,  356 
Connell,  Ex  parte,  3  Deac.  201,     261, 

843 
V.  Owen,  4  Up.  Can.  C.  P. 

113,  ....       711,  730 

Conner  v.  Abbott,  35  Ark.  865,  6 

Connolly  v.  Davidson,  15  Minn. 

519,         ....  C6,  67 

Conrad  v.  Buck,  21 W.  Va.  396,     531, 
583,  695,  708,  704,  769 
Conroy  v.  Campbell,  45  N.  Y. 

Superior  Ct.  326,    -        -        -      813 
v.  Woods,  13  Cal.  626,     562,  929 


Ivii 


Con.] 


TABLE  OF  CASES. 


[Coo. 


Consolidated  Bank  v.  State,  5 
La.  Ann.  44,  -        -        -        -        56 

Const  V.  Harris,  Turn.  &  Euss. 
496,  -        211,  213,  433,  433,  434 

Converse  v.  Citizens'  Mut.  Ins. 
Co.  10  Cush.  37,      -        -      271,  285 

V.  McKee,  14  Tex.  20,     410,  988 

V.  Shambaugh,  4Neb,  376,   1151, 

1154 

Conwell  V.  McCowan,  81   111. 


285, 

—  V.  Sandidge,  5  Dana,  210, 

—  V.  Sandidge,  8  Dana,  273, 


532 

181, 

182 

188, 

629,  631,  810 

Cony  V.  Wheelock,  33  Me.  306,       690 

Cook,  Ex  parte,  2  P.  Wms.  500,       825 

,  Ex  parte,    Montagu,  228,       837 

,  In  re,  3  Biss.  122,     -        -      563 

V.    Arthur,    11    Ired.    (N. 

Ca.)  L.  407,     -        -        -        -     1103 

V.  Batchellor,  3  B.  &  P. 

150, 1031 

V.  Bloodgood,  7  Ala.  683,      410 

V.  Carpenter,  34  Vt.  121,        86 

V.  Castner,  9  Cush.  266,     -      472 

V.  CoUiugridge,    Jac.    607 

(and  decree  in  27  Beav.  n.),   -    244, 
605,  665,  744,  796,  799,  974,  975 

V.  Frederick,  77  Ind.  406,      1147 

V.  Garrett,  1  Brev.  (S.  Ca.) 

856 
234 
662 

676 
733 

1073 

779 


388, 


—  V.  Jenkins,  35  Ga.  113,     - 

—  V.  Jenkins,  79  N.  Y.  575. 

—  V.  Johnson,  47  Conn.  175 
(36  Am.  Rep.  64),  - 

—  V.  Lewis,  36  Me.  340, 

—  V.  Martin,  9  Sm.  &  Mar. 


379, 


V.    Phillips,   16  III.  App. 


446,  .... 

—  V.  Port  Fulton,   106  Ind. 

170, 175 

—  V.  Rogers,  3  Fed,  Rep.  69 

(8  Am.  Law  Rec.  641),  600,  601 

—  V.  Slate   Co.    36   Oh.    St. 

135,  -        -        -        91,609,1155 


Cooke,  Re,  13  Bankr.  Reg.  30,        838 

V.  Allison,  30  La.    Ann. 

Part  II,  963,  -        -       434,  761 

V.  Benbow,  3  Do  G.,  J.  & 

Sm.  1 ;  6  New  Rep.  135,      263,  781, 

786 

V.  Cooke,  L.  R.  4  Eq.  77,      233 

V.  Seeley,  2  Ex.  746,  -    1019 

Cookingham     v.     Lasher,     38 

Barb.    656;     2    Keyes,    454 

(1  Abb.  App.  436),  -  ,  151,  1053 

Cookson   V.    Cookson,    8  Sim. 

529, 216 

CooJey  V.  Broad,   29  La.  Ann. 

315  (29  Am.  Rep.  332),  -        -  17,  67 

V.  Sears,  25  111.  613,  -     275,  1081 

Coomer  v.  Bromley,  5  De  G.  & 

Sm.  532,  ....      475 

Coon  V.  Pruden,  25  Minn.  105,     395, 

400 
Coons  V.  Renick,  11  Tex.  134 

(60  Am.  Dec.  230),  -       322,  334 

Coope  V.  Bowles,  43  Barb.  87; 

18  Abb.  Pr.  442,     .        .        .338 

V.  Eyre,  1  H.  Bl.  37,      65,  71,  80 

V.  Webb,  15  Sim,  454.        -      914 

Cooper,  Ex  parte,  1   M.   D.   & 

De  G.  358,       ....      .541 

V.  Bailey,  53  Me.  230.     194,  1091 

V.  Coates,  21  Wall.  105,     .     1067 

V.   Drouillard,  5  Blackf. 


152, 

—  V.  Frf'derick,  4  G.  Greene 


1070 


(Iowa),  403  (F.  v.  C.  3  id.  171),      434, 

435,  544,  936 
V.  Hood,  26  Beav.  293,      -      247 

V.  McNeill,   14  111.  App. 

403,  ....       78G,  788 

V.    Metropolitan    Bd.    of 

Wks.  25  Ch.  D.  473,       -        -      659 

V.  Reid,  2  Hill  (S.  Ca.)  Ch. 

549,  ....       743,  772 

V.  Tappan,  9  Wis.  361,      -        47 

Coote    V.    Bank    of    U.    S.    3 

Cranch,  C.  C.  95,  -       199,  439 

Coover's  Appeal,  29  Pa.   St.  9 

(aflf'g  3  Phila.  287),         -     190,  1114 


Iviii 


Cop.] 


TABLE  OF  CASES. 


[Cou. 


Copcutt  V.  Merchant,  4  Bradf. 

18, 747,  750 

Cope  V.  Warner,   13  S.  &  R. 

411, 747 

Copeland  v.  Crane,  9  Pick.  73,  937 
Copes  V.  Fultz,  1  Sm.  &  Mar. 

(Miss.)  G23,  -  -  -  714,  723 
Copland  v.  Toulmin,  7  CI.  & 

Fin.  349,  .  -  -  -  181 
Copley  V.  Lawliead.ll  La.  Ann. 

615, 328 

Coppage  V.  Barnett,  34  Miss. 

621, 1153 

Corbett,  Re,  5  Sawy.  206,  1131,1133 
Corbin  v.  McChesney,  26  III. 

231, 647 

Cornells  v.  Stanhope,  14  R.  1. 

97,  -  -  -  -  412,  493,  1037 
Corner  v.  Oilman,  53  Md.  364,     932, 

934 
Corning  v.  Abbott,  54  N.  H. 

469, 323 

V.  Grohe,  65  Iowa,  328,     -      779 

Cornwall  v.  Cornwall,  6  Bush, 

369, 298 

Corps  V.  Robinson,  2  "Wash.  C. 

C.  388,  ...  -  331,  1154 
Corrie  v.  Calder,  6  Rich.  (S. 

Ca.)  L.  198,  ....  1169 
Corser  v.   Cartwright,  L.  R.  7 

H.L.731,  ....  294 
Corwin  v.  Suydam,  24  Ohio  St. 

209,  -        -        -     425,  430,  1048 

Cory  V.  Long,    2  Sweeny  (N. 

Y.),  491,  -       -        -      551,  552 

Cosio  V.  DeBernales,  Ryan  & 

Moody,  102,  -  ...  139 
Costeker  v.  Horrox,  3  Young 

&  C.  Ex.  530,  -       -       -      972 

Coster  V.  Bank  of  Georgia,  24 

Ala.  37,  ...     186,  1102 

V.  Clarke,  3  Edw.  Ch.  411,     439, 

446 
V.  Murray,  5  Johns.  Cb. 

523, 943 

▼.  Thomason,  19  Ala.  717,     398, 

697 


Costello    V.    Nixdorfif,    9   Mo. 

App.  501,        ....      614 
Costley  V.  Towles,  46  Ala.  660,      739 

V.  Wilkerson,  49  Ala.  210,     714, 

722 
Cothay  v.  Fennell,  10  B.  &  C. 

671,         ....  1020,  1023 
Cothran  v.   Knox,  13  S.   Ca. 

496,        ....       770,  771 

V.   Marmaduke,    60  Tex. 

370,         -        .         17,  23,  35,  43,  47 

V.  Perry,  8  Watts  &  S. 

262, 72 

Cottle  V.  Harrold,  72  Ga.  830,  -      291 

V.  Leitch,  35  Cal.  434,      591,  939 

Cotton  V,  Evans,  1  Dev.  &  Bat. 

(N.  Ca.)  Eq.  284,     347,  353,  354,  361 

693,  1081 
Cottrill  V.  Vanduzen,    32  Vt. 

511,  ....   1151,  1154 

Cotzliausen  v.    Judd,  43  Wis. 

213  (28  Am.  Rep.  539),    -     321,  427, 

428,  1038,  1044 

Couch  V.  Mills,   21  Wend.  424,       385 

V.  Woodruff,  63  Ala.  466,        17, 

28,  479 
Couchman  v.  Maupin,  78  Ky. 

33, 824 

Coudrey  v.  Gilliam,  60  Mo.  86,     942, 

949,  950 
Couilliard  v.  Eaton,  139  Mass. 

105,         -       -       -    •    - 
Couldery  v.  Bartrum,   19  Ch. 

D.  394, 

Course  v.  Prince,   1   Mill  (S. 

Ca.),  413, 
V.  Prince,  1  Mill  (S.  Ca.), 


881 
843 
274 
853 


416  (12  Am.  Dec.  649),  - 
Coursen   v.   Hamlin,   2  Duer, 

513,         ....      770,  771 
Coursey  v.  Baker,  7  Har.  &  J. 

28,  .       -       -       -       341,  381,  383 
Coursin's  Appeal,   79  Pa.  St. 

220, 70 

Courtney  v.   Wagstaff,  16  C. 

B.  N.  S.  110,  -        ...       88 
Courts  V.  Happle,  49  Ala.  254,        59 


Ux 


Cov.J 


TABLE  OF  CASES. 


[Cra. 


Coventry  v.  Barclay,  33  Beav. 

1 ;  and  on  app.  3  De  G.  J.  & 

Sm.  320,         -       -       -       -      245 
V.  Barclay,  3  D.  J.  &  S.  320 

(on  app.  from  33  Beav.   1),     211, 

215,  245,  954 
Coverly  v.  Braynard,   28  Vt. 

738, 1126 

Coville  V.  Oilman,  13  W.  Va. 

314,  -        -        -      910,  914,  1160 

Covington  v.  Leak,  88  N.  Ca. 

133, 854 

Co%van    v.    Baird,   77    N.   Ca. 

201, 1067 

V.   Gill,   11  Lea  (Tenn.), 

674,         -       -       825,  828,  838,  839 
V.  Iowa  State  Ins.  Co.  40 

Iowa,  551  (20  Am.  Rep.  583),       271 

V.  Kinney,  33  Oh.  St.  422,   1151, 

1154 
V.  Mclntyre,  19  Up.  Can. 

Q.  B.  607,       ....    1056 
Cowand  v.  Pulley,  11  La.  Ann. 

1, 328 

Cowart  V.  Perrine,  18  N.  J.  Eq. 

454,         -       -        -        -       942,  946 
Cowden  v.  Cairns,  28  Mo.  471,     291, 

295 

V.  Elliott,  2  Mo.  60,  -        -      723 

Cowdin  V.  Hurford,  4  Oh.  132,  454, 
1049,  1117,  1118,  1119 
Cowell  V.  Sikes,  2  Russ.  191,  -  832 
Cowles  V.  Garrett,  30  Ala.  341,  64 
Cox  V.  Cox,   2  Porter  (Ala.), 

533, 389 

V.  Delano,  3  Dev.  L.  89,  -        38 

V.  Harris,  48  Ala.  538,      -    1066 

V.  Hickman,  8  H.  L.  268,       18, 

19,  42,  47,  55,  323,  1052 

V.  Hubbard,  4  C.  B.  317,     1023 

V.   McBurney,    3   Sandf. 

561, 281 

V.  Miller,  54  Tex.  16,      139,  826 

V.  Peters,  13  N.  J.  Eq.  39,     993, 

997 
V.  Piatt,  82  Barb.  126;  19 

How.  Pr.  121,         -       -       -      566 


Cox  V.  Russell,  44  Iowa,  556,  -     821, 

1111,  1113 

V.  Volkert,  86  Mo.  505,     907,  993 

V.  Willoughby,  13  Ch.  D. 

863,  ....  216,  244 
Crabtree  v.  Clapham,  67  Me. 

320;  72  id.  473,       .       -      274,275 

V.  May,  1  B.  Mon.  289,     -      145 

V.  Randall,  133  Mass.  552,     788, 

801 
Craft  V.   McConoughy,  79  111. 

346,  ....  112,  119 
Cragg  V.   Ford,   1  Younge  & 


Coll.  Ch.  280, 


762,  763 
1160 


Cragin  v.  Carleton,  21  Me.  493, 
V.  Gardner  (Mich.),  31  N. 

W.  Rep.  206,         -       .      725,  1065 
Craig  V.  Alverson,  6  J.  J.  Mar. 

609,        .       .       .  96,416,700 
V.  Chandler,  6  Colorado, 

543,        ....        136,  938 
V.  Hulschizer,  34  N.  J.  L. 

363,        -       -       .     383,  1037,  1039 
Cram  v.  Union  Bank  of  Roch- 
ester, 4  Keyes,  558;  1  Abb. 

App.  Dec.  461 ;  42  Barb.  426,       633 
Cramer  v.  Bachmann,  68  Mo. 

310,        ....        775,  777 

707 


V.  Metz,  57  N.  Y.  659, 

Crampton  v.  Jerowski,  2  Fed. 

Rep.  489,        ....      563 
Crane  v.  Barry,  60  Ga.  362,     .      942 

V.  French,  1  Wend.  311,      377, 

379,  1114 

V.  Gloster,  13  Nev.  379,     .    1170 

V.  Morrison,  4  Sawy.  138; 

17  Bankr.  Reg.  393,     551,  557,  561, 

567,  1109 
Cranor  v.  Winters,  75  Ind.  301,  137 
Crary  v.  Williams,  2  Oh.  65,  .  201 
Craven  v.  Edmonson,  6  Bing. 

734, 750 

V.  Knight,  2  Ch.  Rep,  226,       845 

Crawford  v.  Austin,  34  Md.  49,        43 

V.  Baum,  12  Rich.  L.  75,  -    1114 

V.    Collins,  45  Barb.  269; 

30  How.  Pr.  398,    -       -       -      193 


Cra.] 


TABLE  OF  CASES. 


[Ceo. 


Cmwford  v.  Hamilton,  3  Madd. 

254,         -        -       -       -       -      158 

V.  Spotz,  11  Phila.  255,     -      761 

V.  Stirliu-,  4  Esp.  207,      -      349 

V.  Thoroughmau,   13  Mo. 

App.  579,  ....  862 
Ci'awshay  v.   Collins,  15  Vqs. 

218;  1  J.  &  W.  267;  2  Euss. 

325,         316,  255,  658,  755,  794,  796, 

797,  967,  971,  974 

V.  Maule,  1  Swanst.  495,  -     158, 

163,  257,  281,  286,  573,  603,  679,  977, 

1013 
Creath  v.  Smith,  20  Mo.  113,  -  294 
Creel  v.  Bell,  2  J.  J.  Mar.  309,  1030 
Cregler  v.  Durham,  9  Ind.  375,     150, 

375,  1143 
Cremer  v.  Higginson,  1  Mason, 

823,  -  -  .  .  653,  656 
Crenshaw  v.  Wickersham,  15 

Iowa,  154,  ....  1094 
Crescent  City  v.  Camp,  64  Tex. 

521,  .  -  -  .  718,  719 
Crescent  Ins.  Co.  v.  Baer  (Fla. 

1887),  1  So.  R.  318,  -  137,  1103 
Cresson's  Appeal,   91  Pa.   St. 

168,  -  '  -  -  -  -  941 
Cresswell    v.     Oberly,    17   III. 

App.  281,        -        ...  4 

Greswell  v.  Blank,  8  Grant's 

Cas.  (Pa.)  330,  -  -  -  749 
Crews  V.  Lackland,  67  Mo.  619,  1094 
Criley  v.  Vasel,  53  Mo.  445,  -  547 
Crisp,  Ex  parte,  1  Atk.  133,  -  830 
Crites  v.    Wilkinson,    65   Cal. 

559, 403 

Crocker  v.  Col  well,  46  N.  Y. 

213,  -  .  •  443,  444,  445,  450 
Crockett  v.   Crain,   33  N.  H. 

543,  ...  -  835,  847 
Crockford    v.    Alexander,    15 

Ves.  138,  ....  990 
Croft,  Re,  17  Bankr.  Reg.  324; 

8  Biss.  188,  ....  1131 
V.  B.  &  O.  R.  R.  1  Mac- 
Arthur  (D.  C),  493,  -  -  66 
Cron  V.  Cron,  56  Mich.  8,         -      566 


Cronkhite  v.   Herrin,  15  Fed. 

Rep.  888,  ....  704 
Cronly  v.   Bank  of  Ky.  18  B. 

Mon.  405,  -  -  -  094,  695 
Crook  V.  Davis,  28  Mo.  94,  -  1151 
V.  Rindskopf,    105  N.  Y. 

476  (rev.  s.  c.  34  Hun,  457),  5G9 
V.  Taylor,  12  111.  353,        -     1169 


Crooker  v.  Crooker,  46  Me.  250 
(9  Am.  Law.  Reg.  O.  S.  539),     584, 

1109 

V.   Crooker,   53  Me.    267,     453, 

527,  820,  1111 
Crooks  V.  Smith,  1  Grant's  Ch. 

(Up.  Can.)  356,      -        .        -      934 
Croone  v.  Bivens,  2  Head,  339,     533, 

551,  553 
Cropper  v.  Coburn,  3  Curt.  C. 
C.  465,     -        -  915,  1106,  1107,  1109 

v.  Knapman,   2  Y.  &  C. 

Ex.  338 ;  6  L.  J.  N.  S.   Ex, 

Eq.  9, 935 

Crosby  v.  Jeroloman,  37  Ind. 
264,         ....       454,  535 

V.  Dermitt,  7  Cal.  146,     276,  870, 

871,  872,  873 

V.  Nichols,  3  Bosw.  450,      561, 

893 
Cross  V.  Cheshire,  7  Ex.  43,     -      895 

V.  Hopkins,  6  W.  Va.  333,     1013 

V.  Langley,  50  Ala.  8,       •     1151 

V.  National  Bank,  17  Kan. 

336,      173,  507,  510,  511,  513,  515, 

1155 

V.  Williams,  7  H.  &  N. 

675, 75 

Crossley  v.  Taylor,  83  Ind.  337,     853, 

865 
Crossman  v.    Shears,    3  Ont. 

App.  583,        -       -       -      404,  438 
Crosswell  v.  Lehman,  54  Ala. 

363  (35  Am.  Dec.  684),   -      375,  544 
Crosthwait  v.  Ross,  1  Humph. 
33  (34  Am.  Dec.  613),     -     341,  344, 

318,  371,  374 
Crottes    V.     Frigerio,    18    La. 
Ann.  383,        ....      851 
Ixi 


Ceo.] 


TABLE  OF  CASES. 


[CXJB. 


Crouch  V.  Bowman,  3  Humph. 

209,  -        -        -        199,  200,  453 

V.  Woodruff,  63  Ala.  466,      779 

Croughtoii  V.  Forrest,  17  Mo. 

131,  -  -  410,  544,  545,  790 
Crow  V.  Drace,  61  Mo.  225,     281,  291 

V.  Green,  111  Pa.  St.  637,      882 

V.  Weidner,  36  Mo.  413,       726, 

734 
Crowder,  Ex  parte,  2  Vernon, 

706, 825 

Crovvell  V.    Western  Reserve 

Bk.  3  Oh.  St.  406,  -        -    1147 

Crowley  v.  Barry,  4  Gill,  194,  697 
Crowninshield    v.    Strobel,    2 

Brev.  (S.  Ca.)80,  -  -  -  1130 
Crozier  v.  Kirker,  4  Tex.  252 

(51  Am.  Dec.  724),       200,  341,  361, 

430,  439 

V.  Shauts,  43  Vt.  478,     545,  1045 

Cruess  v.  Fessler,  39  Cal.  336,  -  657 
Cruikshank     v.     McVicar,     8 

Beav.  106,  -  -  -  -  919 
Crumless  v.  Sturgess,  6  Heisk. 

(Tenn.)  190,  -  -  -  467,  700 
Cruttwell  V.  Lye,  17  Ves,  335 ; 

1  Rose,  123,  657,  664,  666,  667,  669 
Cubitt  V.  Porter,  8  B.  &  C.  257,  274 
Culbertson     v.     Townsend,    6 

Ind.  64, 724 

Culley   V.    Edwards,  44    Ark. 

423,  -  -  -  -  23,  47,  908 
Cullum  V.  Batre,  1  Ala.  126,    -      746 

V.  Bloodgood,   15  Ala.  34,     401, 

406 
Cumraings'  Appeal,  25  Pa.  St. 

268  (64  Am.  Dec.  695),  -  -  847 
Cummings  v.  Morris,  25  N.  Y. 

625,         -        -        -       850,  880,  930 

V.  Fullam,  13  Vt.  441,       -    1106 

V.  Parish,  39  Miss.  413,     -      333 

Cummins  v.  Cassily,  5  B.  Mon. 

74, 416 

Cumpston  v.  McNair,  1  Wend. 

457,  -        -        -         26,33,1135 

Cunliff  V.  Dyerville  Mfg.  Co.  7 

R.  L  325,        -       -        -      770,  776 


Cunningham  v.  Bragg,  37  Ala. 

436, 694 

V.  Carpenter,  10  Ala.  109,     383, 

1169 

V.  Green,  23  Ohio  St.  296,     114, 

784 

V.  Gushee,  73  Me.  417,      - 

V.  Ihmsen,  63  Pa.  St.  351, 


847 

530, 

881 


V.  Littlefield,  1  Edw.  Ch. 


104, 


383 


V.  Munroe,  15  Gray,  471,     754, 

1026 

V.  Smith,  11  B.  Mon.  325,     764, 

978,  985 

V.  Smithson,  13  Leigh,  33,     439, 

440,  441,  1056,  1057 

V.  Sublette,  4  Mo.  224,     330,  331 

Currey  v.  Warrington,  5  Har. 

(Del.)  147.  -  -  454.  456,  750 
Currier  v.  Bates,  63  Iowa,  537,       763 

V.  Rowe,  46  N.  H.  73,       -      875 

V.  Silloway,  1  Allen,  19,  -   1146, 

1154,  1159 

V.  Webster,  45  N.  H.  226,       875 

Curry  v.  Allen,  55  Iowa,  318,   861,  894 

V.  Burnett,  36  Ind.  279,    -      690 

V.  Fowler,  87  N.  Y.  33  (41 

Am.  Rep.  343),  (affg.  14  Jones 

&  Sp.  195),      -        -        -    23,  47,  49 

V.  Kurtz,  33  Miss.  24,        -      700 

V.  Roundtree,  51  Cal.  184,    1095, 

1096 

V.  Stokes,  12  R.  L  53,        -    1057 

V.  White,  51  Cal.  530,     094,  700, 

704 
Curtin  v.  Munford,  53  Ga.  168,  1007 
Curtis  V.  Belknap,  31  Vt.  433,     1033 

V.  Cash,  84  N.  Ca.  41,      -        61 

V.  Gokey,   68  N.  Y.  300 

(rev.  5  Hun,  555),  -  -  -  676 
V.  Hollingshead,  14  N.  J. 

L.  403,       173,  454,  1049,  1117,  1118, 

1119 

V.  Monteith,  1  Hill,  356,  -    1166 

V.    Woodward,    58  Wis. 

499  (46  Am.  Rep.  647),  833,  834 


Izii 


Cur.] 


TABLE  OF  CASES. 


[Dav. 


Curyea  v.   Beveridge,   94   HI. 

424, 966 

Gushing  v.  Marston,  12  Cush. 

431, 1018 

V.  Smith,  43  Tex.  261,     107,  108 

Cushman  v.  Bailey,  1  Hill,  536,  47 
Cutler  V.  Hake,  47  Mich.  80,    -      262 

V.  Thomas,  25  Vt.  73,        72,  73, 

458,  1136,  1145 
V.  Winsor,  6  Pick.  335  (17 

Am.  Dec.  S85),  -  -  -  45,  59 
Cutts  V.  Haynes,  41  Me.  560,  -    1094 

D. 

Dabney  v.   Stidger,  4  Sm.  «fe 

Mar.  749,  -        -        -    398,  452 

Daby  v.   Ericsson,   45    N.  Y. 

786, 722,  731 

Dages  V,  Lee,  20  W.  Va.  584,     524, 

527 
Dahlgreen  v.  Duncan,  7  Sm.  & 

Mar.  280,  -  -  531,  747,  825,  828 
Dailey  V.  Blake,  35  N.  H.  9,  -  614 
Dakin  v.  Graves,  48  N.  H.  45,     887, 

892 
Dale  V.  Hamilton,  5  Hare,  369,         2, 

803,  331 

V.  Kent,  58  Ind.  584,        -      930 

V.  Thomas,  67  Ind.  570,    -     853. 

866 

V.  Pierce,  85  Pa.  St.  474,    41,  43 

Dales  V.  Weaber,  18  W.  R.  993,  677 
Dalton  City  Co.  v.  Dalton  Mfg. 

Co.  83  Ga.  243,       -       -       45,  723 

V.  Haws,  37  Ga.  115,         -        45 

Dampf  s  Appeal,  106  Pa.  St.  73,     926, 

966 
Dana  v.  Barrett,  3  J.  J.  Mar. 

(Ky.)8,  ....      858 

V.  Conant,  30  Vt.  246,     531,  690 

V.  Gill,  5  J.  J.    Mar.  243 

(20  Am.  Dec.  255),  275,  856,  889 

V.  Lull,  17  Vt.  391,      -    338,  583 

V.  Stearns,  3  Cush.  372,     -      145 

Danaher     v.     Hitchcock,    34 

Mich.  516,      -        -       -        -    1068 


Danbury  Cornet  Band  v.  Bean, 
54  N.  H.  524,  ...        75 

Dance  v.  Gridler,  1  B.  &  P.  N. 
R.  84, 650 

Danforth  v.  Carter,   1    Iowa, 

546, 1121 

V.  Carter,  4  Iowa,  230,      -  1143, 

1158 
Daniel  v.  Daniel,  9  B.  Mon.  195,      383, 

1033,  1042 

V.  Nelson,  10  B.  Mon.  316,       700 

V.  Owens,  70  Ala.  297,      -   1101, 

1108,  1111 

V.   Toney,   2  Met.   (Ky.) 

523,         ....      416,  420 

V.  Townsend,  21  Ga.  155,       750 

Daniels,  Petition  of,   14  R.  I. 

500,  -  -  -  338,  340,  418 
Danvers  v.    Dorrity,    14  Abb. 

Pr.  206,  ....      976 

Dauvill  Co.  V.   Parks,   88  111. 

170, 177 

Darby  v.    Darby,    3  Drewry, 

495,  -  -  -  279,  297,  974 
Darden  v.  Crosby,  30  Tex.  150,  554 
Darland     v.     Roseucrans,     56 

Iowa,  122,  ...  -  561 
Darling  v.  Bellhouse,  19  Up. 

Can.  Q.  B.  263,  -  -  -  23,  83 
V.  Boston  &  C.  R.  R.  11 

Allen,  295,      ....        66 

V.  Magnan,  13  Up.  Can. 

Q.  B.  471,        -        -        -      609,618 

V.  March,  22  Me.  184,     349,  362, 

364,  899,  696 
Darlington  v.  Garrett,   14  111. 

App.  238,  -  -  -  '  -  360 
Darlington  Banking    Co.,  Ex 

parte,  4  Da  G.  J.  &  S.  581,     341, 

360 
Darrow  v.  St.  George,  8  Colo. 

592,         ...       -  40,  43 

Darst  V.  Roth,  4  Wash.  C.  C. 

471,  ....  293,  416 
Dart    V.    Farmers'    Bank,    27 

Barb.  337,  ....  566 
Davenport  v.  Davis,  23  Me.  24,      361 


E 


Ixiii 


Day.] 


TABLE  OF  CASES. 


[Day. 


Davenport  v.  Gear,  3  111.  495, 
V.  Ruulett,  3  N.  -H.  386, 


8G1 

347, 

3G2 


David  V.    Birchard,    53  Wis. 
493,         -       -        -       147,  560,  562 

V.  Ellice,  5  B.  &  C.  196; 

7  D.  &  R.  690  (affirming  s.  C. 
as  David  v.  Ellis,  1  C.  &  P. 

368),        '-       -        -       505,  520,  528 

Davidson  v.  Kelly,  1  Md.  492,     420, 

438,  445,  448,  525 

V.  Knox,  67  Cal.  143,      -   1061, 

1086 

V.  Robertson,  3  Dow.  218,       107 

V.  Street,  31  Ala.  125,       -    1091 

V.  Thirkell,  3  Grant's   Ch. 

(Up.  Can.)  330,        595,  780,  785,  897 

V.  Weems,  58  Ala.  187,     722,  724 

D?,vies  V.  Davies,  2  Keen,  534,     743, 

924,  926 

V.  Hodgson,  25  Beav.  177,     664, 

665 
• V.    Skinner,  58  Wis.   638 

(46  Am.  Rep.  65),  -  -  -  893 
Davis,    Estate    of,    5     Whart. 

530  (34  Am.  Dec.  574),  -  527,  695 
,  Ex  parte,  4  De  G.  J.  & 

Sm.  523, 88 

V.  Allen,  3  N.  Y.  168,       150,  608 

V.  Ames,  3  Drew,  64,         -      232 

V.  Anable,  2  Hill,  339,       -      538 

V.  Berger,  54  Mich.  652,    -      336 

V.  Blackwell,   5  111.  App. 

32,    -        -       348,  349,  351,  360,  448 

V.  Briggs,  39  Me.  304,      683,  884 

V.  Buchanan,  12  Iowa,  575,  1064 

V.  Choteau,  33  Minn.  548,     1029 

V.  Christian,  15  Gratt.  11,     298, 

299,  598,  600,  GDI 
V.  Church,  1  "Watts  &  S. 

240, 722 

V.  Church,  1  E.  D.  Smith, 

279;  8N.  Y.  452,    -        -        -     1031 

V.  Cook,  9  Nev.  184,  -  347,  1058, 

1086 

V.  Cook,  14  Nev.  265,     344,  361, 

367 


Davis  V.  Davis,  60  Miss.  615,    910,  913 

V.  Dodge,  30  Mich.  267,    -     424, 

427,  647 

V.  Evans,  39  Vt.  182,         -        78 

V.  Gelhaus,  44  Oh.  69,    481,  483, 

487 

V.  Grove,  2  Robt.  (N.  Y.) 

134;  id.  635  (27  How.  Pr.  70),     929, 

995 
V.  Howell,  33  N.  J.  Eq.  72,     825, 

833 

V.  Keyes,  38  N.  T.  94,       -      621 

V.  Kline,  76  Mo.  310,        -     1065 

V.  Lane,  10  N.  H.  161,      -      581 

V.  Merrill,  51  Mich.  4S0,    882,  884 

V.  Michelbacher  (Wis.),  31 

N.  W.  Rep.  160,  -  -  -  1006 
V.  Morris,  10  Q.  B.  D.  436,     1059 

V.  Richardson,  45    Miss. 

499,  -  -  -  323,  329, 371 
V.  Ruff,  Cheves  (S.  Ca.), 

17, 1023,  1032 

V.  Scarritt,  17  111.  202,      -    1071 

V.  Smith,  27  Minn.  390; 

29  id.  201,       412,  493,  1043,  1047, 

1048 

■  V.  Sowell,  77  Ala.  262,    711,  715, 

716,  726,  730 

V.  Spencer,  24  N.  J.  386,  -    1080 

V.  Werden,  13  Gray,  305,     1118 

V.  White,  1  Houst.  223,     -    1105 

V.  Willis,  47  Tex.  154,    454,  613, 

1049,  1050 
Davison  v.  Robertson,  3  Dow. 

218, 341 

Daw  V.  Rooke.    See  Rooke  v. 

Nisbet, 804 

Dawson  v.  Beeson,  22  Ch.  D. 

504,         ....      242,  667 

v.  Dawson,  1  Atk.  1,        -      963 

V.  Gurley,  22  Ark.  381,    -        59 

V.  Wilson,  55  Ind.  216,     -    1079 

Day  V.  Lafferty,  4  Ark.  450,     -      419 

V.   Lockwood,   24  Conn. 

185,  -        -        758,764,781,899 

V.  McLeod,   18  Up.  Can. 

Q.  B.  256,       -       -       -       -      351 


Ixiv 


Day.] 


TABLE  OF  CASES. 


[Dem. 


Day  V.  McQuillan,    13    Minn. 

205, 1103 

V.  Stevens,  88  N.  Ca.  83 

(43  Am.  r.ep.  732),         -        -        Gl 

V.  Wetherby,  20  Wis.  3_G3,      5G8 

Dayton  v.  Bartlett,  38  Oh.  St. 

357,         -       -       -       .      714,  772 

V.  Wilkes,   17  How.   Pr. 

510,         -        -        -        660,664,669 

V.  Wilkes,   5  Bosw.    655,     551, 

557,  927 
Deal  V.  Bogue,  20  Pa.  St.    228 

(57  Am.  Dec.  702),  1106,  1111 

Dean  v.  Dean,  54  Wis.  23,       252,  605 

V.  Emerson,  102  Mass.  480,      676, 

677 
V.  Harris,  33  L.  T.  N.  S. 

639, 22,  47 

V.  McFaul,  23  Mo.  76,       -      508 

V.  Macdovvell,   8  Ch.   D. 

345,         ....       306,  793 

V.  Nevvhall,  8  T.  R.  168,  -      385 

V.  Phillips,  17  Ind.  406,    -     825, 

847,  848 
Deane  v.  Hutchinson,  40  N.  J. 

Eq.  83,  -  -  -  -  1111,  1112 
Dear,  Ex  parte,  1  Ch.  D.  519,  563 
Dearborn    v.   Keith,    5    Cush. 

224,         ....       583,  754 

V.  Patton,  44  Ala.  584,      -     1065 

Deardorf  v.  Thacher,  78  Mo. 

128  (47  Am.  Rep.  95),  -  329,  343, 
344,  345,  '361,  363 
Dearing  v.  Smith,  4  Ala.  433,  1158 
De  Berkom  v.   Smith,   1  Esp. 

29, 91 

De  Caussey  v.  Baily,  57  Tex. 

665,  -  -  -  565,  824,  1109 
Deckard  v.  Case,  5  Watts,  23 

(30  Am.  Dec.  287),       340,  403,  418, 

583,  587 
Decker  v.  Howell,  43  Cal.  636,     329, 

370 
V.  Ruckman,  28  N.  J.  Eq. 

614, 114 

Deckert  v.  Filbert,  3  Watts  & 

S.  454,    -        -       -       -       339,  688 


Decreet  v.  Burt,  7  Cush.  551,  883 
Deoks  V.    Stanhope,    14    Sim. 

57,    -        -        -        -  -      914 

Deere  v.  Plant,  43  Mo.  60,  -  507 
Deering  v.  Flanders,  49  N.  H. 

225,  -  -  150,  608,  618,  625 
Deeter  v.  Sellers,  103  Ind.  458,  184 
De  Grieil  v.  Wilson,  30  N.  J. 

Eq.  435,  -  -  -  -  -  1016 
De  Groct  v.  Darby,  7  Rich.  L. 

18, 1024 

Dehority  v.    Nelson,    56    Ind. 

414, 936 


Degan  v.  Singer,  41  111.  28, 


1151 


Deitz  V.  Regnier,  27  Kan.  94,  -     323, 
341,  348,  361,  370,  372,  1153 
De  Jarnette  v.    McQueen,    31 
Ala.  230,      453,  453,  453a,  853,  859, 

881 
Delaney  v.  Dutcher,  23  Minn. 

373, 

V.  Tlmberlake,  23  Minn. 


383, 


53 

43 

75 

764 

127 


Delauney  V.  Stickland,  2  Stark. 

416, 

De  Lazardi  v.  Hewitt,    7  B. 

Mon.  697,        .... 
De  Leon  v.  Trevino,   49  Tex. 

88, 

Delhasse,  Ex  parte,  7  Ch.  D. 

511,  -  -  -  -  17,  29,  49 
Dell,  In  re,  5  Sawy.  344,  -  760,  845 
Delmonico    v.    Guillaume,     3 

Sandf.  Ch.  366,  -  -  -  281 
V.    Roundebush,    2    Mc- 

Crary  C.  C.  18,  -  -  -  307 
Delo  V.  Banks,  101  Pa.  St.  458,  1003 
Deloney     v.     Hutcheson,      2 

Rand.  (Va.)  183,  -  -  282,  286 
Demarest  v.   Rutan,  40  N.  J. 

Eq.  356,  -        -       799,  909,  987 

De  Mautort  v.  Saunders,  1  B. 

&  Ad.  398,  -  -  -  151,  1053 
Deming  v.  Colt,  3  Sandf.  284,       281, 

338 
Demoss  v.  Brewster,  4  Sm.  & 

Mar.  661,        -       -       -       -     1085 


Ixv 


Dem.] 


TABLE  OF  CASES. 


[Dio. 


Demott  V.  Swaira,  5  Stew.  & 

Por.  293,  .  -  -  -  10D2 
Denithorne  v.  Hook,  113  Pa. 

St.  240, 95 

Denman    v.    Dosson,    19    La. 

Ann.  9, 612 

Dennis  v.  Ray,  9  Ga.  449,  331,  556 
Denny  v.  Cabot,  6  Met.  83,        39,  43 

V.  Metcalf,  28  Me.  389,     900,  904 

V.  Piiraeau,  35  Mo.  529,    -      733 

V.  Turner,  3  Mo.  App.  53,     733, 

734 

V.  Ward,  3  Pick.  199,    1099,  1114 

Densmore  v.  Mathews,  58  Mich. 

616, 1135 

Densmore  Oil  Co.  v.  Densmore, 

64  Pa.  St.  43,  -        -      304,  30G 

Dent  V.  Slough,  40  Ala.  518,     -      925 

V.  Turpin,  2  J.  &  H.  139,        69 

Denton  v.  Erwin,   6  La.  Ann. 

317,  .        -        -        .    954,  1137 

V.  Rodie,  3  Camp.  493,     370,  440, 

441 
Denver  v.  Roane,  99  U,  S.  355,     589, 

711,  730,  739,  770,  773,  773,  775,  916, 

923 
De  Pusey  v.  Dupont,  1  Del.  Ch. 

83, 283 

Derraani  v.  Home  Mut.  Ins. 

Co.  26  La.  Ann.  69,  -  -  273 
Derby  v.  Gage,  38  111.  37,  788,  930 
Desha  v.  Holland,  12  Ala.  513 

(46  Am.  Dec.  261),         -        -     1023 

V.  Smith,  20  Ala.  747,       -     781, 

978,  979 
Despatch  Line  V.  Bellamy  Man. 

Co.  13  N.  H.  205,  -  -  418,  420 
Dessaint  v.  Elling,   31   Minn. 

3S7,  ....  1067,  1073 

De  Tastet  v.  Bordenave,  Jac. 

516, 995 

V.  Carroll,  1  Stark.  88,     376,  437 

V.  Shaw,  1  B.  &  Aid.  064,      883 

Delhlefs  v.   Tamsen,  7  Daly, 

354,  -  .  -  -  663,  664 
Detroit  v.  Robinson,  48  Mich. 

193,         ....       376,  408 


Deux  V.  Jeffries,  Croke's  Eliz. 

353, 883 

Devall  V.  Burbridge,  6  W.  &  S. 

529, 761 

Devaynes  v.  Noble,  1  Mer.  529 

(affd.  in  2  R.  &  M.  495),  496,  748 
V.  Noble  (Baring's  Case), 

1  Mer.  611,      T        -        -        -      480 

(Brice's  Case),  id.  620,       -      610 

(Clayton's  Case),   id.  572,    480, 

518 

(Houlton's  Case),  id.  616,        610 

(Johnes'  Case),  id.  619,     -      610 

(Sleech's  Case),  id.  539,    -    518, 

748 
Deveau  v.  Fowler,  2  Paige,  400,     551, 

556,  739 
Deveney  v.  Mahoney,  23  N.  J. 

Eq.  247,  -        -        -        -      283 

Devin  v.  Devin,  17  How.  Pr. 

514, 141 

V.    Harris,    3  G.   Greene 

(Iowa),  186,  -  -  -  333,  334 
Devol  V.  Mcintosh,  23  Ind.  529,     504, 

637 
Devoss  V.  Gray,  23  Oh.  St.  189,  75 
Dewdney,   Ex    parte,   15  Ves. 

499, 705 

Dewey  v.  Dewey,  35  Vt.  455,       281, 

451 
Dewit  V.    Staniford,    1    Root 

(Conn.),  370,  -        -        -      853 

De  Wolf  V.  Howland,  2  Paine, 

C.  C.  356,       ...  64,  71 

Dexter  v.  Arnold,  3  Mason,  284,  786 
De  Zeng   v.  Bailey,  9  Wend. 

336, 385 

Dial  V.  Rogers,  4  Dessaus.  (S. 

Ca.)  175,  -  ...  955 
Diamond  Match  Co.  v.  Roeber, 

35  Hun,  421,  -        -        -      676 

Dickin,  Ex  parte,  L.  R.^20  Eq. 

249,  -  -  -  "-  -  842 
Dickenson  v.  Lockyer,  4  Ves. 

36, 487 

Dickerson     v.      Wheeler,      1 

Humph.  51,  -  -  -  -  690 
Izvi 


Die.  J 


TABLE  OF  CASES. 


[Don. 


Dickinson  v.  Bold,  3  Desaus. 

(S.  Ca.)  501,    -       -       -        -      575 
V.    Dickinson,    29    Conn. 

600, 974 

V.    Dickinson,    25    Gratt. 

331,         -       -        -       610,  612,  021 

V.  Granger,  18  Pick.  315,       864 

V.  Legare,    1   Desaus.    (S. 

Ca.)  537,  -        -       403,  405,  420 

V.  Vulpy,  10  B.  &  C.  128,       83, 

87,  91,  94,  329,  345 
Dickson  v.  Alexander,  7  Ired. 

L.  4,        -       -       -  348,  373 

V.  Burke,  28  Tex.  117,      -    1057 

V.  Collins,  17  Ala.  635,     -    1168 

V.    Indianapolis    Cotton 

Mfg.  Co.  03  Ind.  9,        -        -      709 
Dickson  Crucible  Co.  v.  Gug- 
genheim, 2  Brewst.  321,        -      672 
Dieckmann  v.  St.  Louis,  9  Mo. 

App.  9, 823 

Digby,  Ex  parte,  1  Deac.  341,        44 
Diggs  V.  Brown,  78  Va.  293,    -     281, 

290,  297,  823 
Dillard  v.  Scruggs,  36  Ala.  670,  43,  60 
Dillon  V.  Brown,  11  Gray,  179,     299, 

417,  418 

V.  Kauffman,  58  Tex.  696,      524 

V.  McRae,  40  Ga.  107,       -      372 

Dils  V.  Bridge,  23  W.  Ya.  20,     42,  43 
Dilworth  v.  Mayfield,  36  Miss. 

40,  -        -        -        290,  293,  294,  822 
Dimon  v.  Hazard,  32  N.  Y.  65,     551, 

560 
Dimond  v.  Henderson,  47  Wis. 

172,         -        -        -       788,  918,  983 
Dinham   v.  Bradford,  L.   R.  5 

Ch.  App.  519,         -     247,  785,  1012 
D'Invillier'a  Estate,  13  Phila. 

362,  ....       825,  833 

Dishon  V.  Schorr,  19  111.  59,     -    1080 
Ditsche    v.    Becker,   6    Phila. 

170, 43,44 

Ditts  V.  Lonsdale,  49  Ind.  521,       364 
Divine  v.  Mit6hum,  4  B.  Mon. 

483  (41  Am.  Dec.  241),        281,  290, 
291,  295,  823,  1111 


Dix  V.  Mercantile  Ins.  Co.  23 

111.  273, 273 

V.  Otis,  5  Pick.  38,    85,  508,  1140 


Dixon  V.  Barclay,  23  Ala.  370,     1153 

V.  Dixon,  19  Iowa,  513,     -    1029 

V.  Hammond,  3  B.  &  Al. 

310, 723 

V.  Hood,  7  Mo.  414(38  Am. 

Dec.  461),  -  -1151,1154,1163 
Doak  V.  Swann,  8  Me.  170,  -  33 
Doane  v.  Adams,  15  La.  Ann. 

350, 229 

Dob  V.  Halsey,  16  Johns.  34  (8 

Am.  Dec.  293),    347,  363,  1043,  1048, 

1083 
Dobell  V.  Loker,  1  Handy,  574,  1065 
Dobson  V.  Chambers,  78  N.  Ca. 

334, 1154 

Dodd  V.  Dreyfus,  17  Hun,  600 ; 

57  How.  Pr.  319,  -  -  -  534 
Doddington  v.  Hallet,   1  Ves. 

Sr.  497,  ....  70,  457 
Dodds  V.  Rogers,  68  Ind.  110,    1153, 

1170 
Dodge  V.  McKay,  4  Ala.  346,  -  414 
Dodgson,    Ex  parte,  Mont.    & 

Mac.  445,  -  .  -  -  164 
Dodson  V.    Dodson,   6  Heisk. 

(Tenn.)  110,  -  -  -  742,  771 
Doe  ex  dem.  Colnaghi  v.  Bluck, 

8  C.  &  P.  464,  -  -  286,  709 
Doe  ex  dem.  v.  Miles,  4  Camp. 

373;  1  Stark.  181,  -  -  -  575 
Doe  ex  dem.  Overton  v.  Roe,  9 

Dowl.  1039,  -  .  -  .  1085 
Doe  ex  dem.  Smith  v.  Tupper, 

4  Sm.  &  Mar.  261  (43  Am. 

Dec.  483).  -  -  -  414,  416 
Doggett  V.  Dill,  108  lU.  560  (48 

Am.  Rep.  565),      -        750,  825,  838 

V.  Jordan,  3  Fla.  541,        -    1135 

Dolman  v.  Orchard,  3  C.  &  P. 

104, 441 

Donahue  v.  McCosh,  70  Iowa, 

733,  ....  788,  959 
Donald  v.  Hewitt,  33  Ala.  534,       70, 

406 


Ixvii 


Don.] 


TABLE  OF  CASES. 


[Dra. 


Donaldson  v.  Bank  of  Cape 
Fear,  1  Dev.  (N.  Ca.)  Eq.  103 
(18  Am.  Dec.  577),        183,  184,  296, 

299,  927 

V.  Williams,  1  Cr.  &  M. 


345, 


335 


Donally  v.   Ryan,  41  Pa.   St. 
30G, 446 

Donellan    v.    Hardy,   57  Ind. 

393,  ...  -  1102,  1111 
Doiielson  v.    Posey,    13    Ala. 

753, 181 

Doner  v,  Stauffer,  1  Pa.  (Pen. 

&  W.)  198  (31  Am.  Dec.  370),  190, 
824,  1111,  1113 
Doniphan  v.  Gill,    1  B.  Mon. 

199, 420,  535 

Donley  v.  Bank,  40  Oh.  St.  47,     454, 

655 

V.  Hall,  5  Bush,  549,         -        86 

V.  Hall,  40  Oh.  St.  47,      -      655 

Donnell  v.  Harshe,  67  Mo.  170,       29, 

37,  61 
V.  Jones,  13  Ala.  490  (18 

Am.  Dec.  59),  .  -  1031,  1034 
V.  P.  &  O.  R.  R.  76  Me. 

33, 1081 

Donoho  V.  Fish,  58  Tex.  164,  -  338 
Doro  V.   Wilkinson,    2  Stark. 

287, 403 

Doremus  v.  McCormick,  7  Gill 

(Md.),  49,  -  831,  382,  465,  480 
Dorsey  v.  Dashiell,  1  Md.  198,     630. 

638 

V.  Wayman,  6  Gill,  59,'  -      489 

Doty  V.  Bates,  11  Johns.  544,     197, 

343,  846,  361 
Doubleday  v.  Muskett,  7  Bing. 

110, 74,  89 

Dougal  V.  Cowles,  5  Day,  511,     437, 

441 
Dougherty  v.   Smith,   4  Met. 

(Ky.),  279,      ....    1024 

V.  Creary,  30  Cal.  290,      163,  433 

V.  Van  Nostrand,  1  Hoff. 

Ch.  68,  .  -  658,  7T0,  785,  974 
Douglas  V.  Patrick,  3  T.  R.  683,      406 

Ixviii 


Douglas  V.  United  States,  14 

Ct.  of  Claims,  1,    -        -        -      582 

V.  Winslow,  20  Me.  89,     -     180, 

1105,  1114 
Douglass  V.   Brown,   37   Tex. 

528, 905 

Bounce  v.  Parsons,  45  N.  Y. 

180,  ....       446,  477 

Doupe  V.  Stewart,   13  Grant's 

Ch.  (Up.  Can.)  637,      578,  995,  997, 

1003 
Douthitt  V.  Stinson,  73  Mo.  199,  296 
Dow  V.  Sayward,  13  N.  H.  271 

(affd.  14  id.  9),        -       67,  323,  1113 

V.  Sayward,  14  N.  H.  9,       67, 

180,  1106,  1122 

V.  Smith,  8  Ga.  551,       350,  1121 

Dowell  V.  Mitchell,   105  U.  S. 

430, 749 

Dowling  V.  Clarke,  13  R.  I.  134,      849 
Downer  v.  Harrison,  2  Gratt. 

250, 1065 

Downing,    Re,    1    Dili   33;    3 

Bankr.  Reg.  748,    -        .       560,  882 

V.  Linville,  3  Bush,  472,     412, 

493 
Downs  V.  Collins,  6  Hare,  418,       51, 

249 
Dowzelot  V.  Rawlings,  58  Mo. 

75,  -      609,  626,  693,  700,  1151 

Doyle  V.  Bailey,  75  III.  418,      .        78 
Dozier  v.  Edwards,  3  Litt.  (Ky.) 

67, 930 

Drake,  Ex  parte,   cited    in    1 

Atk.  225,         ....      845 
V.  Blount,  2  Dev.  (N.  Ca.) 

Eq.  353,  -        -        .       717,  750 

V.  Brander,  8  Tex.  351,     -    1121 

V.   Elwyn,   1   Caines,   184 


(overruled  in   part  in    1  N. 

Y.  242),   -        -      191,  201,  8G1,  1135 

—  V.  Moore,  66  Iowa,  58,      .    1131 

—  V.  Ramey,  3  Rich.  L.  (S. 

Ca.)  37,  ...         43,  ic8 

—  V.  Rogers,  6  Mo.  317,        -      338 

—  V.  Taylor,  6  Blatch.  14,   .  453a, 

641 


Dra.] 


TABLE  OF  CASEfe. 


[Dun. 


Drake  v.  Thyng,  37  Ark.  228,  -     403, 

401 

V.  Williams,  18  Kan.  98,      629 

Draper  v.  Bissell,  3  McLean, 

275,  ....  G94,  698 
Drcner  v.   ^tna  Ins.  Co.    18 

Mo.  128,  .       ...      273 

Drenncn    v.    London    Assur. 

Corp.  20  Fed.  Rep.  657  (re- 
versed in  part,  113  U.  S.  51. 

See  Loudon  Assur.  Corp.  v. 

Drenuen,  116  U.  S.  461),       81,  271, 

272 
Dresser  v.  Wood,  15  Kan.  844,  1085 
Drew  V.  Beard,  107  Mass.  64,     793, 

936,  988 
V.  Drew,  2  Ves.   Sc  Bea. 

159, 966 

V.  Person,  22  Wis.  651,    852,  854 

Driggs  V.  Morely,  2  Pin.  (Wis.) 

403;  2Chand.  59,  -  -  -  927 
Driver  v.  Burton,  17  Q.  B.  989,     438, 

1017 
Drumright  v.  Philpot,  16  Ga. 

424  (60  Am.  Dec.  738),        331,402, 
414,  416,  418,  429 
Drury  v.   Roberts,  2  Md.  Ch. 

157,  ...  993,  997,  999 
Dry  v.  Boswell,  1  Camp.  329,  16,  59 
v.  Davy,  10  A.  &  E.  30;  2 

Perry  &  Dav.  219,  -  -  649 
Dryer  v.  Sander,   48  Mo.  400,     201, 

205,  439 
Dubois'  Appeal,  38  Pa.  St.  231,  418 
Duborrow's  Appeal,  84  Pa.  St. 

404,  -  -  -  928,  nil,  1112 
Du  Bree  v.  Albert,  100  Pa.  St. 

483, 289 

Dudley  v.  Little,  2  Oh.  St.  504,       113 

V.  Littlefield,  21  Me.  418,     194, 

279,  353,  367 
Duff  V.  East  India  Co.  15  Ves. 

198,  -        -        -       381,  681,  683 

V.  Maguire,  107  Mass.  87,      770, 

776,  854 
Duffield  V.  Brainerd,  45  Conn. 

424,        -        -        -        -        218,  580 


Duffill  V.  Goodwin,  23  Grant's 

Ch.  Up.  Can.  431,  -        -      891 

Duffy  V.  Gray,  53  Mo.  523,      -   1031, 

1033 

V.  Shockey,  11  Ind.  71,    -      677 

Dulaney    v.    Rogers,    50    Md. 

524, 803 

Dulles  V.  De  Forest,  19  Conn. 

190, 651 

Dumont  v.  Ruepprecht,  38  Ala, 

175,  230,  255,  591,  594,  597,  775 

Dunbar  v.  Bullard,  2  La.  Ann. 

810, 301 

v.  Garrity,  58  N.  H.  575,      496 

Duncan,  Re,  10  Daly,  95,  -      835 

v.  Clark,  2  Rich.  L.  587,   -      352 

v.  Lewis,  1  Duv.  (Ky.)  183,     446, 

507,  508 

V.  Lowndes,  3  Camp.  478,     349, 

364,  365 

V.  Rawls,  16  Tex.  478,      -      963 

V.  Tombeckbee  Bank,   4 

Porter  (Ala.),  181,      -    1091,1093 
Duncklee  v.  Greenfield  Steam 

MiU  Co.  3  Foster,  245,  883, 394 

Dunham  v.  Gillis,  8  Mass.  463,     863, 

872,  873.  889 

V.  Hanna,  18  Ind.  270,     5G0,  834 

V.  Murdock,  2  Wend.  553,     1114 

-:: V.  Presby,  120  Mass.  285,      114, 

119,  121,  128 

V.  Rogers,  1  Barr,  255,        43,  45 

Dunkerson,  Re,  4  Biss.  277,      -      835 
Dunkerson,  Re,  4  Biss.  323;  12 

Bankr.  Reg.  391,  -  -  -  825 
Dunkle,  Re,  7  Bankr.  Reg.  107,  367 
Dunklin  v.    Kimball,  50  Ala. 

251,  -  -  -  338,  839,  340 
Dunlap    V.    Limes,   49    Iowa, 

177,        ....       483,  693 

V.  McNeil,  35  Ind.  316,     -      604 

V.  Odeua,   1  Rich.  (S.  Ca.) 

Eq.  273,  -        -        -        -      229 

V.  Watson,  124  Mass.  305,     770, 

771,  788 


Dunlop  V.  Richards,  2  E.   D. 

Smith,  181,     -        -        -        -      307 
Ixix 


Dun.] 


TABLE  OF  CASES. 


[Ear. 


Dunman  v.  Coleman,  59  Tex. 

199,  .  -  .  .  725,  1029 
Dunn  V.   McNaught,    38    Ga. 

179,  ....      595,  993 

Dunne  v.  O'Reilly,  11  Up.  Can. 

C.  P.  404,  ....  110 
Dunnell  v.  Henderson,  23  N. 

J.  Eq.  174,  226,  254.  7G8,  780,  978 
Dunnica  v.  Clinkscales,  73  Mo. 

500, 452 

Dunns    v.    Jones,    4    Dev.   & 

Bat.  154,  ....  1057 
Dun  ton  v.    Brown,   31    Mich. 

182,  ....      143,  144 

Du  Pont  V.  McLaran,   61  Mo. 

503,  -       -^     -        .      586,  927 

Dupuy    V.    Leavenworth,     17 

Cal.  263,  187,  291,  294,  295,  340 

V.  Sheak,  57  Iowa,  361,    -     136, 

257,  260 
Duquesne  Nat'l  Bk.  v.  Mills, 

2  Fed.  Rep.  611,  -  -  720,737 
Durand  v.  Curtis,  57  N.  Y.  7,     507, 

508.  510,  513 
Durant  v.   Rhener,    26  Minn. 

362,  ...  84,  114,  119 
V.    Rogers,     71     111.    121 

(limited  in  87  id.  508),    -      465,  647 

V.  Rogers,  87  111.  508,      350,  405, 

480 
Durbin  v.  Barber,  14  Oh.  311,  577, 
589,  597,  761,  797,  1007 
Durden  v.  Cleveland,  4  Ala. 

225, 868 

Durell  V.  Wendell,  8  N.  H.  369,  385 
Duress  v.  Horneffer,    15  Wis. 

(195),  215  (see  H.  v.  D.  13  id. 

603), 137 

Durgin  v.  Coolidge,  3  Allen, 

554, 338 

V.  Somers,   117  Mass.  55,     384, 

1158 
Durham  v.  Hartlett,  32  Ga.  22,     630, 

806 

V.  People,  5  111.  172,  -      488 

Durham      Smoking     Tobacco 

Case,  3  Hughes,  151,     -       -      663 


Duryea  v.  Burt,  28  Cal.  569,  -  163, 
290,  291,  295,  585,  822 
V.    Whitcomb,    31    Vt. 

395, 17,  26 

Duryee  v.  Elkins,  1  Abb.  Adm. 

529, 69 

Dutton   V.   Morrison,   17  Ves. 

193,  ....  755,  928 
— '■ —  V.  Woodman,  9  Gush.  255 


(57  Am.  Dec.  46),  1149,  1151,  1160 
Duval  V.    Wood,    3  Lansing, 

789, 440 

Dwight  V.  Brewster,   1  Pick. 

50, 67 

V.   Hamilton,    113  Mass. 

175,         -       -       -       603,  664,  668 

V.  Mudge,  12  Gray,  23,     -      503 

V.  Scovil,  2  Conn.  654,      -      400 

V.  Simon,  4  La.  Ann.  490,      475 

Dwinel  v.  Stone,  30  Me.  384,     17,  29, 

36,  37,  43,  257 
Dyas   V.    Dinkgrave,    15    La. 

Ann.  503,  -  -  -  174,  1059 
Dyer  v.  Clark,  5  Met.  562  (39 

Am.  Dec.  697),  281,  285,  290,  293, 
294,  300,  822,  1114 

V.  Sutherland,  75  111.  586,     383, 

1035 
Dyke  v.  Brewer,  3  Car.  &  K. 

833, 508 

E. 

Eads  V.   Mason,    16  111.    App. 
545, 749 

Eager  v.  Crawford,  76  N.  Y. 

97,  -       -       -        -         23,  47,  1137 

V.  Price,  3  Paige,  333,       -    1113 

Eagle  V.  Bucher,  6  Oh.  St.  295,     574, 

780 
Eagle  Mfg.  Co.  v.  Jennings,  29 

Kan.  657  (44  Am.  Rep.  668),  505 
Eakin  v.  Knox,  6  S.  Ca.  14,     944,  957, 

960 

V.  Shu  maker,  12  Tex.  51,       305 

Earbee  v.  Ware,  9  Porter,  295,  1093 
Earl  V.  Hurd,  5  Blackf.  248,  -  1155 
Early  v.  Burt,  68  Iowa,  716,    -      505 


Ixx 


Ear,] 


TABLE  OF  CASES. 


[Ell. 


Early  v.  Reed,  6  Hill,  12, 


868    Edwards  v.  Hughes,  20  Mich. 


Earon  v.  Mackey,  106  Pa.  St. 

452,  -        -        510,  512,  513,  G96 

Eason  v.  Cherry,  6  Jones,  Eq. 

201, 544 

Easter  v.  Farmers'  Nat'l  B'k, 

57  111.  215,  -  -  625,  694,  698 
Eastman  v.  Clark.  53  N.  H.  276 

(16  Am.  Rep.  192),  -  16,  23,  59 
V.  Cooper,  15  Pick.  276  (26 

Am.  Dec.  600),  -  -  353,  362 
Easton  v.  Couitwright,  84  Mo. 

27,  -  294,  300,  726,  733,  734 

Easterly  *   Bassignano,  20  Cal. 

489,  ....    1168 

Eaton  V.  Able,  91  Ind.  107,      -      832 

V.  Taylor,  10  Mass.  54,    429,  694, 

698 

V.  Whitcomb,  17  Vt.  641,     321, 

412,  427,  1025 
Eaton,  Cole  &  Burnham  Co.  v. 

Avery,  83  N.  Y.  31,  -  -  1155 
Ebbert's  Appeal,  70  Pa.  St.  79,  2S9 
Ebert  v.  Ebert,  5  Md.  353,  -  234 
Eckerly  v.    Alcorn,   62    Miss. 

228, 616 

Eckhardt  v.    Wilson,  8  T.  R. 

140,  ....  753,  1026 
Eddie  v.  Davidson,  Dougl.  650,  1100 
Eden  v.  Lingeufelter,    39  Ind. 

19, 978 

Edens  v.  Williams,  36  111.  252,     634, 

893 
Edgar  v.  Cook,  4  Ala.  588,        51,  603 

V.  Donnally,  2  Munf.  387,      405 

Edgell    V.    Macqueen,    8    Mo. 

App.  71,  ....    1153 

Edgerly  v.  Gardner,  9  Neb.  1.30,  56,  76 
Edmonds,  Ex  parte,  4  De  G., 

F.  &  J.  488,  -  -  -  836,  843 
V.  Robinson,    29  Ch.    D. 

170,  ....  802,  806 
Edmonson  v.  Davis,  4  Esp.  14,  471 
Edmundson  v.  Thompson,  2  F. 

&  F.  564,  ...  91,  101 
Edwards  v.  Entwisle,  2  Mackey 

(Dist.  Col.),  43,       -        -       564,  566 


289,         -        -        -  1117,1118,  1119 

V.  McEnhill,  51  Mich.  160,      139 

V.  Pitzer,  12  Iowa,  607,     377,  380 

V.  Remington,  51  Wis.  336,       887 

V.  Remington,  60  Wis.  33,     760, 

785,  820,  939 

V.  Stevens,  3  Allen,  315,  -      141 

v.  Thomas,  66  Mo.  468,     -     136, 

137,  249,  5S9 

V.  Tracy,  62  Pa.  St.  374,     29,  43, 

1151,  1154 

Egberts  v.  Wood,  3  Paige,  517,     580, 

688,  722,  726,  732,  739 

Ege  v.  Kyle,  2  Watts,  221,       -     10G7 

Eggleston    v.    Boardman,     37 

Mch.  17, 
V.  Wagner,  46  Mich.  610, 


437 

549 

1151 


Ehrman  v.  Kramer,  30  Ind.  26, 

Eichbaum  v.  Irons,  6  W.  &  S. 

67, 

Eighth  Nat'l  B'k  v.  Fitch,  49 

N.  Y.  539,       .... 
Einstein  v.  Gourdin,  4  Woods, 

C.  C.  415,        .... 
Einstmanv.  Black,  14111.  App. 

381, 

Elder's  Appeal,  39  Mich.  474, 
Elder  v.  Hood,  38  111.  533, 
Eld  red  v.  Warner,  1  Ariz.  175, 
Elgie  V.  Webster,  5  M.  &  W. 

518,         -■-... 
Elgin  National  Watch  Co.  v. 

Meyer,  30  Fed.  Rep.  659,       - 
Elkin  V.  Gj-een,  13  Bush,  612, 

196,  347 
Elkinton  v.  Booth,  143  Mass. 

479, 

EUicott  V.  Nichols,  7  Gill,  85, 
V.  Smith,  2  Cranch,  C.  C. 


75 

1114 

43 

317 
850 
868 
743 

876 

569 

107, 


609 
703 


543, 


1125 


Ellinger's  Appeal,  7  Atl.  Rep. 

180;  114  Pa.  St.  505,      -       377,  452 
EUiot  V.  Davis,  3  B.&P.  338,      315, 

346,  349,  421 

v.  Stevens,  38  N.  H.  311,       105, 

322,  446,  566,  567,  840,  1052,  1053 


Ixxi 


Ell.] 


TABLE  OF  CASES. 


[ESH. 


Elliott  V.  Deason,  64  Ga.  63,    851,  878 

V.  Dudley,  19  Barb.  326,  -      349 

V.  Dycke,  78  Ala.  130,      296,  299 

V.  Hoi  brook,  33  Ala.  659,      377, 

380,  385 
Ellis,  Ex  parte,  2  GI.  &  J.  312.      843 

V.  Bronson,  40  III.  455,     618,  628 

V.    Commander,  1  Strob. 

Eq.  (S.  Ca.)  18S,     -        -        -      990 

V.  Ellis,  47  N.  J.  L.  69,    377,  380 

V.  Fisher,  10  La.  Ann.  479,     1163 

V.  Jamesoa,  17  Me.  235,   -    1160 

V.  Lauve,  4  La.  Ann.  245,     1168 

Ells  V.  Bone,  71  Ga.  466,  -        -      537 
EUston  V.  Deacon,  L.  R.  2  C.  P. 

20, 347 

Ellswangerv.  Coleman,  7  Mo. 

App.  582,        ....      527 
Ellsworth  V.  Pomeroy,  26  Ind. 

158,         ....  41,  43 
V.  Tartt,  26  Ala.  733  (63 

Am.  Dec.  749),       .       -        66,  134 
Elton,  Ex  parte,  3  Ves.  Jr.  238,     825, 

830 
Elverson  v.  Leeds,  97  Ind.  336 

(49  Am.  Rep.  458),         .       107,  611 
Ehvooil  V.    Western  Un.  Tel. 

Co.  45  N.  Y.  545,   -        .       878,  881 
Ely  V.  Hair,  16  B.  Mon.  230,    -     339, 

824 

V.  Horine,  5  Dana,  398,    715,  716 

Emanuel  v.  Bird,  19  Ala.  596 

(54    Am.  Dec.  200),     750,  825,  828, 

833 

V.  Draughn,  14  Ala.  303,        28 

V.  Mariin,  12  Ala.  233,      -      453 

Emerson  v.  Baylies,  19  Pick. 

55,  -        -       .        -    383, 1079,  1083 

V.  Duraud,  64  Wis.  Ill,  -     482, 

483,  777,  785,  940 

V.  Harmon,  14  Me.  271,    -     355, 

370.  372 
V.  Knower,  8  Pick.  63,     383,  383 

V.  Parsons,  46  N.  Y.  560 

(all  g  2  Sweeny,  417),     -       551,  575 

—  —  V.   Providence  Hat  Mfg. 
Co.  12  Mass.  237,    ...      334 


Emerson  v.  Senter,  118  U.  S.  3,     726, 

732 
Emery  v.  Canal  Nat'l  Bank,  7 

Bankr.    Reg.    217;   3    Cliff. 

507, 341 

V.  Parrott,  107  Mass.  95,     807, 

896 

V.  Wilson,  79  N.  Y.  78,    -      885 

Euily,  Ex  parte,  1  Rose,  64,     -      266 

V.  Lye,  15  East,  7,      -     439,  440 

Emmons  v.  Newman,  38  Ind. 

372, 43 

V.    Westfield   Bank,    97 

Mass.  230,       -       -       -        -  43, 47 

Emrie  v.  Gilbert,  Wright  (O.), 

764, 849 

Endo  V.  Caleham,  You.  306,  -  958 
England  v.  Curling,  8  Beav. 

129,         -     211,  213,  988,  1010,  1013 

V.  Downs,  6  Beav.  269,     .      659 

V.  England,  1  Baxter,  108,        45 

Engle    V.    Bucher,    6    Oh.    St. 

295, 589 

Englis    V.    Furniss,    4    E.    D. 

Smith,  587;  3  Abb.  Pr.  333,     900, 

905 
English  &  American  Bank,  Ex 

parte,  L.  R.  4  Ch.  App.  49,      843 
English  &  Irish   Cliurcb,  etc. 

Assur.  Soc,  In  re,  1  Hen.  & 

M.  85, 19 

Enix  V.  Hayes,  48  Iowa,  86,  .  1023 
Eniiis  V.  Williams,  30  Ga.  691,  613 
Ensign  v.  Briggs,  6  Gray,  339,     291. 

453,  453 

V.  Wands,   1  Johns.  Cas. 

171, 333 


Ensmingerv.  Marvin,  5  Blackf. 

210,  ....    361,  1008 

Ellsworth  V.  Curd,  08  Mo.  2S3,  908 
Eppinger  v.   Canepa,  20  Fla. 

263, 1171 

Erwin's    Appeal,    39    Pa.    St. 

535, 293 

Erwin  v.  Downs,  15  N.  Y.  575,  897 
Eshleman  v.  Harnish,  76  Pa. 

St.  97,  -  -  -  -  39,  47,  48 
Ixxii 


Esp.] 


TABLE  OF  CASES. 


[Fai. 


Esposito  V.  Bowden,  7  EI.  & 

BI.  763, 583 

Espy  V.  Comer,  76  Ala.   501,     281, 

297,  703,  706 
Ess,  lu  re,  3  Biss.  301,  -  -  150 
Ess  ^x  V.  Essex,  20  Beav.  442,  216,  302 
Estabrook  v,  Messersmith,  18 

Wis,  545,         -        -        -  1037,  1038 

V.  Smith,  6  Gray,  570,      -      194 

Estes,  Re,  3  Fed.  Rep.  134;  6 

Sawy.  459,      -        -        -        -      825 

V.  Whipple,  12  Vt.  373,    -      855 

Etcliemende  v.  Stearns,  44Cal. 

583, 1151 

Etheridge  v.  Binney,  9  Pick. 

273,         ....       370,  443 
Evans  v.  Bidleman,  3  Cal.  435,     395, 

481 

V.  Bradford,  35  Ind.  527,       175 

V.Bryan,  95  N.  Ca.  174,     821, 

917,  1132 

V.  Carey,  29  Ala.  99,         -      385 

V.  Clapp,  123  Mass.  165,        759, 

960 
v.   Corriell,    1  G.   Greene 

(Iowa),  25,      -        -        -        -    1151 
V.  Coventry,  8  DeG.  M.  & 

G.  835,     -■       -        -        .        -      7S8 

V.  Drummond,  4  Esp.  89,      150, 

523,  528,  608,  600 

V.  Dunn,  26  Oh.  St.  439,  -      970 

V.  Evans,  9  Paige,  178,     -      994 

V.  Gibson,  29  Mo.  223,     311,  790 

V.  Hanson,  42  111.  234,     210.  251, 

645 

V.  Hawley,  35  Iowa,  83,      186, 

290,  569,  823,  1115 

V.  Howell,  84  N.  Ca.  460,       569 

V.  Hughes,  18  Jur.  691,     -      073 

— -  V.  Montgomery,  50  Iowa, 

325,         -        -        -       595,  909,  984 

V.  Richardson,  3  Her.  469,     110, 

119 

V.  Silverlock,  1  Peake,  31,     1024 

v.    Wells,  22  Wend.    324 ; 

Lockw.   Rev.  Cas.   390  (rev. 

W.  v.  E.  20  'id.  251),      -        -      415 


Evans  v.  Winston,  74  Ala.  349,     446, 

509,  825 

Everet  v.  Williams,  2  Pothier 
on  Obi.  3;  Europ.  Mag.  1787, 
vol.  2,  p.  360,         -        -       1 19,  127 

Everett  v.  Backhouse,  10  Vea. 

100, 834 

V.  Coe,  5  Den.  180,    -        -        47 

Everhart's  Appeal,  106  Pa.  St. 


349, 301 

Everit  v.  Strong,  5  Hill,    163; 

affd.  7  id.  585,         -        -      401,  418 
Everitt  v.   Chapman,  6  Conn. 

347,  -    32,  58,  80,  323.  445,  1135 

Everughim     v.     Ensworth,    7 

Wend.  336,      -        -     383,  427,  1044 
Everly  v.  Durborrow,  8  Phila. 

93 ;  1  Pa.  Leg.  Gaz.  127,        -      816 
Eversou  v.  Gehrman,  10  How. 

Pr.  301 ;  1  Abb.  Pr.  167,       377,  380 
Ewing  V.  Ewing,  L.  R.  8  App. 

Cas.  822,  .        ...      245 

V.  Trippe,  73  Ga.  776,       607,  608 

Exchange  Bank  v.  Ford,  7  Col- 
orado, 314,      -        -        -        -     1049 

V.  Tracy,  77  Mo.  594,       598,  599 

Ex  parte.  See  under  the  names. 
Eyre,  Ex  parte,  1   Ph.  227  (aff. 

3  M.  D.  D.  12),        -        -        -      475 
V.  Beebe,  28  How.  Pr.  333,    569 

F. 

Fabian  v.  Callahan,  56  Cal.  159,  139 
Fagan  v.  Long.  30  Mo.  222,  507,  509 
Fagg  V.  Hambel,  21  Iowa,  140,  385 
Faikney  v.  Reynous,  4  Burr.  ■ 

2009,        ...        -      113,  127 
Fail  V.  McArthur,  31  Ala.  26,       331 

V.  McRee,  36  Ala.     61,      -        63 

Fain  v.  Jones,  3  Head,  303,  -  824 
Fairbank  v.  Leary,  40  Wis.  637,     1 12. 

117,  119 

V.  Newton,  50  Wis.  628,    -      113 

Fairbanks  v.  Kittridge,  24  Vt. 

9, m 


Ixxiii 


Fai] 


TABLE  OF  CASES. 


[Fas. 


Fairchild  v.  Amsbaugh,  22  Cal. 

572, 1167 

V.  Fairchild,  64  N.  Y.  471 

(aff.  5  Hun,  407),  -  281,  284,  285, 
297,  298,  301,  978 

V.    Grand   Gulf  Bank,   5 

How.  (Miss.)  597,  -        -        -    1071 

V.  Holly,  10  Conn.  175,     -      489 

V.  Rushmore,  8  Bosw.  698,     1074 

V.  Siocum,  19  Wend.  329 

(affd.  7  Hill,  292),  -        -        67 

V.  Valentine,  7  Robt.  (N. 

Y.)  5G4,  -        -        -        -      939 

Fairhohn    v.    Marjoribanks,    3 

Ross.  Lead.  Cas.  697,     -       164,  168 
Fairlee    v.    Blooraingdale,    14 

Abb.  New  Cas.  341;  67  How. 

Pr.  292,  -       -       -        -      139 

Fairtborne  v.  Weston,  3  Hare, 

387,         ....       913,  939 
Faith  V.  Richmond,  11  A.  &  E. 

339;  3  P.  &  D.  187,        202,  203,  441 
Faler  v.  Jordan,  44  Miss.  283,      331, 
841,  351,  370,  372,  1170 
Fall  River  Un.  Bank  v.  Sturte- 

vant,  12  Cush.  372,        .        -      410 
Fall  River  Whaling  Co.  v,  Bor- 
den, 10  Cush.  458,        285,  290,  301, 

302,  822 
Falls  V.  Hawthorn,  30Ind.  436,  694 
Fanclier  v.  Bibb  Furnace  Co. 

2  So.  Rep.  268 ;  80  Ala.  481,      336 
Fanning  v.  Chadwick,  3  Pick. 

420  (15  Am.  Dec.  233),  858,  864 

Fant  V.  West,  10  Rich.  L,  149,       416 
Fargo  V.  Adams,  45  Iowa,  491,      565, 

1114 
V.  Louisv.,   New  Alb.    & 

C.  R"y,  10  Biss.  273,       -       .        73 

V.  Wells,  45  Iowa,  491,     -      184 

Farley  v.  Lovell,  103  Mass.  387,     1037 

V.  Moog,  79  Ala.  148,      715,  741, 

74G,  756,  927,  928.  1111 
Farmer,  Re,   18.  Bankr.    Reg. 

207, 301 

V.  Samuel,  4  Litt.  (Ky. ) 

18T(14  Am.  Dec.  106),  -       255,  311 


Farmers'  Bank  v.  Bayless,  35 
Mo.  428,  -        -     439,  446,  1154 

V.  Bayliss,  41  Mo.  274,     204,  205, 

441,  446.  448,  451 

Farmers',  etc.  Bank  v.  Butch- 
ers', etc.  Bank,  16  N.  Y.  125,      361 

Farmers'  Ins.  Co.  v.  Ross,  29 
Oh.  St.  429,    .        -         38,  61,  1135 

Farmers'  &  Mech.  Bank  v. 
Green,  30  N.  J.  L.  316,      624,  1147, 

1148 

Farmers'    &    Mer.     Bank    v. 

Lonergan,  21  Mo.  46,     -        -      399 

Farmers'  &  Traders'  Sav.  Inst. 
V.  Garesche,  12  Mo.  App. 
584, 734 

Farnam  v.  Brooks,  9  Pick.  212,     958, 

962 

Farnswortb  v.  Boardman,  131 
Mass.  115,       -        .       629,  636,  879 

V.  Whitney,  74  Me.   370,     629, 

632 

Farnum,  In  re,  6  Law  Re- 
porter,   21,    -        -        .    453a,  841 

V.  Patch,  60  N.  H.  294,    -        76 


Farquhar  v.    Hadden,    L.   R.  7 

Ch.  App.  1,  -  -  -  -  180 
Farr  v.  Johnson,  25  III.  522,     .      181 

V.  Pearce,  3  Madd.  74,     665,  C68, 

807 

V.  Wheeler,  20  N.  H.  569,         3, 

445,  1150 
Farrand  v.    Gleason,    56    Vt. 

633,  -        -        -        .29,  59,  68 

Farrarv.  Beswick,  1  Moo.  &  R. 

527, 181 

V.  Defiance,   1  Car.  &  K. 

580, 608 

V.  Hutchinson,   9  Ad.    & 

El.  641, 383 

V.  Pearson,  59  Me.  561,    -      863 


Farrington   v.   Woodward,  82 
Pa.  St.  259.     -        -        -        .      636 

Farwell  v.  Davis,  66  Barb.  73,      151, 

724,  1024,  1052. 

V.    Metcalf,    63    N.    H. 

276,         -       -       .     ■  .        -       566 


Ixxiv 


FAK.J 


TABLE  OF  CASES. 


[Fie. 


Farwell  v.  Tyler,  5  Iowa,  535,  -      865 
Faulds  V.  Yates,  57  111.  416,    -     307, 

433,  433 
Faulkner  v.   Brigel,   101   Ind. 

839,         -        -  1019,  1117,  1131 

V.  Hill,  104  Mass.  188,      -      534 

V.  Whitaker,  15  N.  J.  L. 

438,         -  173,  1117,  1119,  1151 

Faust  V.  Burgevin,  23  Ark.  170,     636, 

879 
Faver  v.  Briggs,  18  Ala.  478,  -  1091 
Fawcett  v,  Odborn,  33  111.  411,        29, 

36,  39,  43,  257 
V.  Whitehouse,  1  Russ.  & 

M.  133,  -  -  -  307,  913,  937 
Fay  V.  Davidson,  13  Minn.  533,  66 
V.  Duggan,  123  Mass.  243 

(21  Am.  Law  Reg.  N.  S.  799),    1029, 

1073,  1106 

V.  Finloy,  14  Phila.  206,  -      639 

V.  Noble,  7  Cush.  188,       -  4 

Fayette  Nat'lBank  v.  Kenney, 

79  Ky.  133,  -  -  453a,  837,  841 
Featherstone  v.  Hunt,  1  B.  & 

C.  113;  3  Dow.  &  Ry.  233,  -  537 
Featherslonliaugh  v.  Fenwick, 

17  Ves.  298,     -    218,  305,  571,  573, 

794,  974 

V.  Turner,  25  Beav.  382,        243, 

778,  797,  803 
Feder  v.  Epstein,  69  Cal.  456,  10S5 
Feigley  v.   Whitaker,  23   Oh. 

St.  606  (10  Am.  Rep.  778),  -  701 
Felder  v.  Wall,  26  Miss.  595,    -     930, 

938 
Felichy  v.  Hamilton,  1  "Wash. 

C.  C.  491,  -  -  -  -  26 
Fellows  V.  Greenleaf,  43  N.  H. 

431,         ....      825,  937 

V.  Wyman,  33  N.  H.  351,     690, 

695, 1037,  1044 
Feltonv.  Deall,  23Vt.  170,  -  45 
V.  Reid,  7  Jones  (N.  Ca.), 

L.  269,  -  -  -  713,  714,  733 
Fenn  v.  Bolles,  7  Abb.  Pr.  303,  673 
V.  Timpson,  4  E.  D.  Smith, 

276, 1154 


Fensler  v.  Prather,  43  Ind.  119,      534 

Fenton  v.  Block,  10  Mo.  App. 
536,  ....   1039,  1045 

V.   Folger,  21  Wend.  676,     1114 

Fereday  v.  Horderu,  Jac.  141,       16, 

47,56 

V.  Wjghtwick,  Taml.  250; 

1  Russ.  &  M.  45  (former  re- 
port is  best),  ....      845 

Fereira  v.  Sayres,  5  Watts  & 
S.  310  (40  Am.  Dec.  496),      709,  730 

Ferguson  v.  Fylle,  8  CI.  &  Fin. 

121,         -        -        -        -        -      330 

V.  Hass,  Phil.  (N.  Ca.)  Eq. 

113, 297 

V.   King,  5  La.  Ann.  642,       191 

V.  Shepherd,  1  Sneed,  254,      317, 

428 

V.  Thacher,  79  Mo.  511,    -     347, 

349 

V.  Wood,  23  Tex.  177,       -    1073 

V.  Wright,  61  Pa.  St.  258,       849 


Fern  v.   Gushing,  4  Gushing, 

357,  -        -        -      180,  755,  1122 

Ferrero  v.  Buhlmeyer,  34  How. 

Pr.  33,     -        -        -        -      577,  585 
Ferris  v.    Thaw,  5   Mo.   App. 

279,         ....         75,  191 
Person  v.  Monroe,  1  Foster  (21 

N.  H.),  462,     -        446,  566,  567,  824 
Fessler  v.  Hickernell,  83  Pa. 

St.  150, 853 

Fetz  V.  Clark, 7  Minn.  217  (over- 
ruled),   -       -       -       .   1074,  1094 
Feurt  V.  Brown,  23  Mo.  App. 

333,  -        -        -       328,  341,  866 

Fichthorn  v.  Boyer,  5  Watts, 

159, 

Pick  V.   Mulholland,   48  Wis. 

413, 

Fickett  V.  Swift,  41  Me.  65,     - 
Fidler  v.  Delavan,   20  Wend. 

57, 

Field  V.  Carr,  5  Bing.  13, 
V.  Chapman,  15  Abb.  Pr. 

434, 559 

V.  Cooks,  16  La.  Ann.  153,  5 


416 

1151 
331 

1033 
489 


Ixxv 


Vie.] 


TABLE  OF  CASES. 


[Fit. 


Field  V.  IMalone,  103  Ind.  251,  -    1124    First  Nat'l  Bank  v.  Hackett,  61 


V.  Tenney,  47  N.  H.  513, 


1136, 
1140 


Fielden    v,    Lahens,     2    Abb. 

App.  Dec.  Ill;  9  Bosw.  430, 
Fifield  V.  Adams,  3  Iowa,  487, 
Figgius  V.  Ward,  2   Cr.  &   M. 

424,  -  -  -  -  - 
Filley  v.  McHenry,  71  Mo.  417, 
V.  Phelps,  18  Conn.  294,  - 

184,  453,  535,  556,  558,  719,  745,  747, 

750,  848,  1114 
Fillyau  v.  Laverty,  3  Fla.  72,   -   749, 

750 
Finch,  Ex  parte,   1  D.  &  Ch. 

274, 

V.   De   Forest,   16  Conn. 


349 
506 

397 
1151 
180, 


754 


445, 


194 


Finckle  v.  Stacey,  Sel.  Cas.  in 
Ch.  9, 59 

Findlay,  Ex  parte,  17   Ch.   D. 

334, 835 

Fink  V.  Patterson,  21  Fed.  Rep. 

603,         .....      929 
Finley  v.  Fay,  17  Hun,  67  (re- ' 
versed   as  Finley  v.  Finley, 
96  N.  Y.  663),         -        -        -      629 

V.    Finley,  96  N.    Y.   6G3 

(rev.  s.  C.  as  Finley   v.  Fay, 

7  Hun,  67),     ....      639 

V.   Lycoming   Mat.  Ins. 

Co.  SO  Pa.  St.  311,         -       -      273 
Finney  v.  Allen,  7  Mo.  416,      -    1094 

V.  Turner,  10  Mo.  207,      -      850 

First  Nat'l  Bank,  Ex  parte,  70 
Me.  309,  -        -        -    453,  453a 

V.  Almy,  117  Mass.  476,    -  4 

V.  Breese,  39  Iowa,  640,    -      364 

V.  Carpenter,  34  Iowa,  433,     331, 

349,  362,  399 

V.  Carpenter,  41  Iowa,  518,      349 

V.  Ells,  68  Ga.  192,    -        -      695 

V.  Bissell,  4  Fed.  Rep.  694; 

2  McCrary,  73  (afifd.  as  Bis- 
sell V.  Foss,  114  U.  S.  252),   -      310 

V.  Freeman,  47  Mich,  408,       401 

V.  Goflf,  31  Wis.  77,      72,  73,  458 


Wis.  335,        -        -        -     338,  1133 

V.  Hall,  101  U.  S.  43,       054,  710 

V.  M6)-gan,  73  N.  Y.  593 

(affd.  6  Hun,  346),         853,  361,  529, 

538,  747,  750 

V.  Snyder,  10  Mo.  App.  211,      329 

Fischer  v.  Raab,  57  How.  Pr. 

87, 594 

Fish  V.  Dana,  10  Mass.  46,       639,  640 

V.  Gates,  133  Mass.  441,     -    1018 

V.  Lightner,  44  Mo.  263,  -      264 

V.  Miller,  5  Paige,  26,       -      338 

Fisher  v.  Bowles,  20  111.  398,    -      109 

V.  Minot,  10  Gray,  260,    -      547 

V.  Murray,  1  E.  D.  Smith, 

341, 838 

V.  Pender,  7  Jones,  L.  483,    416, 

421 
V.  Stovall  (Tenn.),  3  S.  W. 

Rep.  567,        ....      930 

V.  Sweet,  67  Cal.  233,        33,  849 

V.  Syfers,  109  Ind.  514,    565,  568 

V.  Tayler,  3  Hare,  218,      -      371 

V.  Tifft,  127  Mass.  313,     532,  534 

V.  Tifft,  12  R.  L  56  (S.  C. 


with    note,    18 
Reg.  N.  S.  9), 


Am.     Law 


532 


V.   Tucker,  1  McCord   (S. 

Ca.),  Ch.  169,        414,  C90,  701,  703, 

709,  747,  750 
Fisk  V.   Copeland,   1  Overton 

(Tenn.),  383,  ....      831 

V.  Gould,   13  Fed.   Rep. 

373, 939 

v.  Herrick,  6  Mass.  271,   -    1103 

Fiske  V.  Hills,  11  Biss.  294,     935,  929 
Fitch  V.  Hall,  25  Barb,  13,       -        43 

V.  Harrington,  13  Gray, 

408  (8  Am.  Law  Reg.  N.  S. 

688),        -        -       -   91,  93, 164,  168 

V.   McCrimmon,   30  Up. 

Can.  C.  P.  183,       -       491,  494,  497 

Fitchter  v.  Fitchter,  11  N.  J. 

Eq.  71,    -       -     990,  993,  995,  1003 
Fithian    v.    Jones,    13   Phila. 

201, 794 


Ixxvi 


Fit.] 


TABLE  OF  CASES. 


[For. 


Fitzgerald  v.  Boehm,  7  J.  B. 

Moore,  333,     -  -        -      74G 

V.  Cross,  20  N.  J.  Eq.  90,     553, 

541 
V.    Grimmell,    64    Iowa, 

261,         -        -  173,  1059,  1061,  1063 
Fitzpatrick  v.   Flannagan,  106 

U.  S.  648,       559,  560,  737,  738,  731, 

794,  824,  929 
Hack  V.  Charron,  29  Md.  311,      503, 

500 
Flagg  V.  Stowe,  85  111.  164,    5,  6,  181, 

257 

V.  Upbam,  10  Pick.  147,   -     347. 

365,  367 
Flammer   v.  Green,  47  N.  Y. 

Superior  Ct.  538,  -       -       -      591 
Flanagan  v.  Alexander,  50  Mo. 

50, 410 

V.  Shuck,  83  Ky.  617,    283,  291, 

298 
Flannagan  v.   Maddin,  81  N. 

Y.  623, 985 

Flannery  v,  Anderson,  4  Nev. 

437,     '    -        -        -      377,  379,  1086 
Fleming  v.  Billings,  9  Rich.  Eq. 

149, 825 

V.  Dorn,  34  Ga.  213,        100,  1167 

V.  Dunbar,  3  Hill(S.  Ca.), 

L.  532, 416 

. V.  Lawthorn,  Dudley,  L. 

360, 420 

Flemming  v.  Prescott,  3  Rich. 

(S.  Ca.)  L.  307  (45  Am.  Dec. 

766),        ....       349, 362 
Flemyug  v.  Hector,  2  M.  &  W. 

173, 75 

Fleshman    v.    Collier,  47    Ga. 

253,         -       -    78,  1154,  1159,  1160 
Fletcher  V.  Anderson,  11  Iowa, 

228, 691 

V.  Hawkins,  2  R.  I.  330,  -      239 

V.  Ingram,  46  Wis.  191,    306,  463 

V.  Pollard,  2  Hen.    &  M. 

(Va.)  544,         -        -        -      978,  982 

V.  Reed,  131  Mass.  312,     -     571, 

785,  917,  918 


Fletcher  v.Yan  Dusen,  52  Iowa, 

448,        -  741,  1000,  1001,  1004 

V.  Vanzant,  1  Mo.  196,      -      431 

Flint  V.  Marble  Co.  53  Vt.  009,        39 
Flintoff    V.    Dickson,    10    Up. 

Can.  Q.  B.  438,  -  -  -  1114 
Flockton  V.  Bunning,  L.  R.  8 

Ch.  A  pp.  223,         -        -        -      484 
Flood,  Ex  parte,  23  New  Bruns- 
wick, 86,        -       -       -        -      468 
Florida  Territory  v.  Redding, 

1  Fla.  279,  -  ...  715 
Flournoy  v.   ■Williams,  68  Ga. 

707, 1151 

Flowers  v.  Helm,  29  Mo.  324,      700 
Floyd  V.  Miller,  61  Ind.   224,     694, 

1159 
Flynn  v.  Fish,  7  Lansing,  117,  276 
Foerster     v.     Kirkpatrick,     2 

Minn.  210,  ...  -  1067 
Fogarty  v.   Cullen,   49  N.   Y. 

Superior  Ct.  397,  -  -  529,  746 
Fogerty  v.  Jordan,  2  Robt.  (N. 

Y.)  319,  ...  -  331,  332 
Fogg  V.  Greene,  16  Me.  2S3,  -  1160 
V.  Johnston,  27  Ala.   433 

(63  Am.  Dec.  771),  592,  595,  597 
V.  Lawry,   68  Me.    78  (38 

Am.  Rep.   19),  1101,  1105,  1111 

Poland  V.  Boyd,  33  Pa.  St.  476,       400 

Folk  V.    Wilson,   31   Md.    538,     193, 

203,  319,  437,  444,  523,  524,  981, 

1147,  1150,  1151 

Foltz  V.  Pourie,  2  Desaus.  (S. 

Ca.)  40,  ....      695 

Fontaine  v.  Lee,  6  Ala.  889,    694,  695 
Foot,  Re,  12  Bankr.  Reg.  337;  8 

Ben.  228,        -        -        -       841,  842 

V.  Hunkins,  14  Allen,  15,     1103 

V.  Ketchum,    15  Vt.    258 

(40  Am.  Dec.  678),         -        -    1082 


V.  Sabin,  19  Johns.  154  (10 

Am.  Dec.  208),       -        349,  858,  362 
Forbes  v.  Davison,  11  Vt.  660,     569, 

1140 

V.  Scannell,  13  Cal.  243,    340,  825 

Ford  V.  Clark,  73  Ga.  760,        -      703 
Ixxvii 


For.] 


TABLE  OF  CASES. 


[Fox, 


Ford  V.  Kennedy,  64  Ga.  537,     1151, 

1154,  1170 

V.  McBryde,  45  Tex.  498,     370, 

372 

V.  Smith,  27  Wis.  261,       36,  43, 

1108,  1110 
Forde  v.  Herron,  4  Muuf.  (Va.) 

316, 295 

Fordice  v.  Scribner,   108  Ind. 

85, 430 

Fordyce  v.  Shriver,  115  111.  530,     761, 

967 
Forkner  v.  Stuart,  6  Gratt.  197,     320, 
40;J,  405,  406,  418 
Forman  v.  Homfray,  3  Ves.  & 

Bea.  329,        -        -       -        -      910 
Forney  v,  Adams,  74  Mo.  138,      410, 

427,  1038,  1043 
Forrer    v.    Forrer,    29    Gratt. 

(Va.)  134,      -        -        305,  770,  777 
Forrester  v.  Oliver,  1  111.  App. 

259, 727 

Forsaith    v.    Merritt,    1   Low. 

366;  3  Bankr.  Reg.  11,  -       753,  755 
Forster    v.    Lawson,    3    Bing. 

453;  11  Moo.  360,  -        -        -    1031 

V.  Mackreth,  L.  R.  2  Ex. 

163,  -        -        329,  343, 371,  376 

Forsyth,  Re,  7  Baukr.  Reg.  174,       347 

V.  Woods,  11  Wall.  484,   -     111, 

128,  173,  453,  829 
Fortune  v.  Brazier,  10  Ala.  793,     1024 

V.  Hayes,  5  Rich.  (S.  Ca.) 

Eq.  112, 704 

Forward  v.  Forward,  6  Allen 

494,  706,  742,  746,  788,  925,  926 

Fosdick  V.  Van  Horn,  40  Oh. 
St.  459,     107,  150,  153,  157,  196, 443, 

449 
Foster's  Appeal,  74  Pa.  St.  391 
(15  Am.    Rep.    553;    3  Am. 
Law  Rec.  230),     289,  290,  294,  297, 

299,  743 
Foster  v.  Allanson,  2  T.  R.  479,      858 

V.  Andrews,  2  Pa.  160,     361,  367 

V.  Barnes,  81  Pa.  St.  377,      289, 

291,  446,  824,  1008 


Foster  v.  Chaplin,  19  Grant's 
Ch.  (Up.  Can.)  251,       -       251,  813 

V.  Donald,  1  Jac.  &  W. 

252,         ...       -      971,  972 

V.  Fifield,  29  Me.  136,    424,  647, 

701,  978,  1048 
V.  Hall,  4  Humph.  (Tenn.) 

346,         216,  347,  439,  446,  584,  727, 

1168 

V.  Rison,  17  Gratt.  321,  -      861, 

949,  950,  952,  957,  958 

-'v.  Shephard,  33  Tex.  687,     741, 

1003 
V.  Vanauken,  4  N.  J.   L. 

109, 865 

V.  Ward,  1  Cababe  &  El- 
lis, 168, 90f 

Foulks  V.  Rhodes,  12  Nev.  225,     850 

874,  88^ 
Fourth  National  Bank  v.  Heu- 

schen,  52  Mo.  207,  -      397,  69' 

Fowke  V.  Bowie,  4  Har.  &  J. 

566, 49''r 

Fowle  V.   Harrington,  1  Cush. 

146,  -        -        349,  690,  694,  695 

V.  Torrey,  131  Mass.   289,       503 

Fowler  v.  Bailley,  14  Wis.  [125] 

136.  -  -  -  -  2'Jl,  1086 
V.  Reynal,  2  DeG.  &  Sm. 

749;  3  M.  &  G.  500,        -        -      174 

V.   Richardson,    3  Sneed 

(Tenn.),  508,   -        -      526,  094,  095 

V.  Tuttle,  24  N.  H.  9,        -      268 

V.  Williams,  02  Mo.  403,  -     1065 

Fowlkes    V.    Baldwin,    2  Ala. 

705,  -  -  -  1074,  1086,  1087 
V.  Bowers,  11  Lea  (Tenn.), 

144,  -      452,  453a,  825,  828,  841 

Fox  V.  Clifton,  6  Bing.  776;  4 

M.  &P.  713,    -      72,74,83,95,160 

V.  Haubuiy,  Cowper,  445,      184, 

274,  403,  583,  610,  754,  755 

V.  Johnson,  4  Del.  Ch,  580,       141 

V.  Norton,  9  Mich.  207,     -    215, 

416 
V.  Rose,  10  Up.  Can.  Q.  B. 

16,  276,  403,  405,  577,  585,  756 


Ixxviii 


Fka.] 


TABLE  OF  CASES. 


[Fro. 


Francis,  In  re,  2  Sawy.  286 ;  7 

Bankr.  Reg.  359,     23,  bo,  43,  47,  49 

,  The.  1  Gall.  618,        -      191,  793 

V.  Dickel,  68  Ga.  255,     139,  1094 

V.   Lavine,  21   La.   Ann. 

265, 930 

V.  Rand,  7  Conn.  221,      -   1079, 

1080 

V.  Smith,  1  Duv.  121,        -      504 

Francisco  v.  Fitch,   25  Barb. 

130, 730 

Fraucklyn    v.     Sprague,     131 

U.  S.  215,        -        -       294,  500,  645 
Frank    v.    Anderson,    13    Lea 

(Tenn.),  695,  -        -        -       136,  137 
V.  Beswick,  44  Up.  Can.  Q. 

B.  1,        -        -        -        -       243,  580 

V.  Blake,  58  Iowa,  750,     -      393 

V.  Peters,  9  Ind.  343,        -      824 

Fraser  v.  Kershaw,  2  Kay  & 

J.  496,     ...        -       754,  755 
V.  McLeod,  8  Grant's  Ch. 

(Up.  Can.)  208,      -        -       310,  373 
Frazer  v.  Howe,  106  111.  503,      510, 

511 
Frazier  v.  Frazier,  77  Va.  775,      770, 

774 
Freck  v.  Blakiston,  83 'Pa.  St. 

474,         -        -        -       307,  793,  903 
Frederick,  The,   5  Rob.  Adra. 

8, 59 

V.  Cooper,  3  Iowa.  171  (C. 

V.  F.  4  G.  Greene,  403),       182,  216, 

779,  931,  936 
Freeland  v.  Stansfeld,  3  Sm,  .& 

G.  479,     -      241,  755,  805,  807,  808, 

809,  820,  995 
Freeman,  Ex  parte.  Buck,  471,     503, 

516 

V.  Bloomfield,  43  Mo.  391,     159, 

165,  317 

V.  Campbell,  55  Cal.    197,      453 

V.  Campbell,  56  Cal.  039,       189 

V.  Carhart,  17  Ga.  348,      -     10S8 

V.  Carpenter,  17  Wis.  126,     329, 

371 

V.  Fairlie,  3  Mer.  24,         -      814 

F 


Freeman  v.  Falconer,  44  N.  Y. 

Superior  Ct.  132,    -       -       -      628 

V.  Freeman,  136  Mass.  200,     739, 

794,  795,  923,  974 

V.  Ross,  15  Ga.  252,    347,  352,  353 

V.  Stewart,  41  Miss.  138,      749, 

824,  929 
Freeman's  Nat'l  B'k  v.  Savery, 

127  Mass.  75,  349,  354,  355,  359 

Frcese  v.  Ideson,  49  111.  191,    -    1136 
French  v.    Andrade,  0  T.    R. 

582, 723 

V.  Barron,  49  Vt.  471,      -      101 

V.  Chase,  6  Me.  106,  -      155 

V.  Donohue,  29  Minn.  Ill,       133 

V.    Hayward,     16    Gray, 

512, 736 

V.  Lovejoy,  13  N.  H.  458,     566, 

723,  731,  1045 

V.  Price,  24  Pick.  13,        -       71 

V.  Rowe,  15  Iowa,  563,     -      472 

V.  Styring,  2  C.  B.  N.  S.  ^ 

357,         .       ...       63,  257 

V.  Wall,  2  Tex.  288,  -       -      969 

Frick  V.  Barbour,   64  Pa.  St. 

120, 1154 

Friend  v.   Duryee,  17  Fla.  Ill 

(35  Am.  Rep.  89),  -        -     339,  1071 
V.  Michaelis,  15  Abb.  N. 

Cas.  354,         -        -        -        -      569 
Friermuth    v.    Friermuth,    40 

Cal.  42, 746 

Frigerio    v.    Crottes,    20    La. 

Ann.  351,        -        -        -        -      813 
Frink  v.  Branch,  16  Conn.  260,     282, 

291,  295 
V.  Ryan.  4  III.  323,    - 


Fripp  V.  Williams,  14  S.  Ca. 

502, 

Frith  V.   Lawrence,   1  Paige, 

424, 

From  me  v.   Jones,    13    Iowa, 
474, 

Fromont  v.  Coupland,  2  Bing. 

170,         -         67,  257,  850,  856,  861 
Froneberger  v.  Henry,  6  Jones, 
L.  348,    ....      420,  432 
Ixxix 


887 
480 
822 
406 


Feo.] 


TABLE  OF  CASES. 


[Gal. 


590 

506 

59 


Frost  V.    Hanford,    1    E.    D. 
Smith,  540,     -        -        -      332,  323 

V.  Moulton,  21  Beav.  596,     164, 

169 

V.  Schackleford,   57  Ga. 

260,         ....  1067,  1070 

V.  Walker,  60  Me.  468,     -       72, 

78,  74,  458 
Frothingham  v.  Seymour,  121 
Mass.  409,  -  -  -  - 
Froun  v.  Davis,  97  Ind.  401,  - 
Frout  V.  Hardin,  56  Ind.  165, 
Frow,  Jacobs  &  Co.'s  Estate, 

73  Pa.  St.  459,         453,  532,  848,  879 
Fry,  Ex  parte.  1  GI.  &  J.  96,     -      503 

V.  Hawley,  4  Fla.  258,       -      164 

V.  Potter,  12  R.  I.  542,       -      865 

Frye  v.  Sanders,  21  Kan.  26  (30 

Am.  Rep.  421),        -      334,  424,  905 
Fullam  V.  Abrahams,  29  Kan. 

725,  -        .        .        .      825,  847 

Fuller  V.  Benjamin,  23  Me.  255,     930, 

931,  933 

V.  Ferguson,  26  Cal.  546,         189 

V.  Hooper,  3  Gray,  334,       399, 

841 

V.  Miller,  105  Mass.  103,    -     230, 

779,  922 
Nelson,  35  Minn.  213,  1016 
Percival,  126  Mass.  381,       895 

V.  Rowe,  57  N.  Y.  23  (rev. 

59  Barb.  344),  -        -       5, 7, 507 

V.  Scott,  8  Kan.  25,  -        -      362 

Fullerton  v.  Seymour,    5  Vt. 

249, 10G8 

Fulmer's  Appeal,  90  Pa.  St.  143,     182, 

252,  255 
Fulton's  Appeal,  95  Pa.  St.  323,      852 
Fulton  V.  Central  B'k  of  Pitts- 
burg, 62  Pa.  St.  112,      -        -      695 

V.  Golden,  12  N.  J.  Eq.  37,     978 

Hughes,  63  Miss.  61,     551,  560 

Maccracken,  18  Md.  528,      191 

Thompson.  18  Tex.  278,     580, 

710,  711,  731,  741,  1000 

V.  Williams,  11  Cush.  108,     346, 

531,  882,  884 


V. 
V 


V. 

V. 

V. 


Funck  V.   Haskell,   132  Mass. 

580,  -  -  -  -  -  779 
Funk  V.  Leachman,  4  Dana,  24,  780 
Fuqua  v.  Mullt-n,  13  Bush,  467,  724 
Furlong  v.    Bartlett,  21   Pick. 

401, 147 

Furnival  v.  Weston,   7  J.   B. 

Moore,  350,    -       -       -       -      883 


G. 

Gaar   v.    Huggins,   12    Bush, 

259,  -        -        -      618,  625,  1157 

Gable  v.  Williams,  59  Md.  46,     732, 

741,  1000,  1001 
Gabriell   v.  Evill,  9  M.  &  W. 

297 ;  Car.  &  Marsh.  358,  -  83 
Gadsden  v.  Carson,  9  Rich.  Eq. 

252,  -        .        .        .       569,  825 

Gaflfney   v.    Hoyt   (Idaho),  10 

Pac.  Rep.  34,  -  -  .  1155 
Gage  V.  Angell,  8  How.  Pr.  335,  850 
V.    Canada   Pub.    Co.    11 


663 
211, 


Out.  App.  402  (affg.  6  id.  68), 

V.   Parmalee,    87  III.  329, 

777,  786,  95!:!,  979,  981,  983 

V.    Rollins,    10  Met.    348,     205, 

437,  1020 
Gaines  v.  Beirne,  3  Ala.   114,    1055, 

1127 

V.    Catron,     1    Humph. 

(Tenn.)  514,    ....      285 

V.  Coney,  51  Miss.  323,      -      180 

Galbraith  v.  Gedge,  16  B.  Mon. 

630,  290,  293,  294,  297,  298,  822 

Galbreath  v.  Moore,  2  Watts, 

86, 865 

Gale  V.  Leckie,  2  Stark.  107,     870, 

873,  874 
V.   Miller,   54  N.   Y.   536 

(affg.  1  Lans.  451 ;  s.  C.  at  an 

earlier  stage,  44  Barb.  420),  347, 
300,  369,  626,  691 
Gallagher's  Appeal,   7  Atl.  R. 

237;  114  Pa.  St.  353,  -  559,  569 
Gallop  V.  Newman,  7  Pick.  282,        47 


Ixxz 


Gal.] 


TABLE  OF  CASEa 


[Gat. 


Galloway  v.  Hughes,   1  Bail, 

(S.  Ca.)  L.  553,       -       -'      -      818 
Gallway  v.  Mathew.    See  Gal- 
way  V.  Matthew. 
Galway  v.  Fullerton,  17  N.  J. 

Eq.  389, 406 

V.  Mattliew,  1  Camp.  403 

(S.  C.  as  Gallway  v.  Mathew, 

10  East,  2G4),  197,  200,  325,  346 

Gamble  v.  Grimes,  2  Ind.  392,      347 
Gammon  v.  Huse,   9  111.  App. 

557  (affd.  100  111.  234),  882,  884 
V.  Huse,  100  111.  234  (affg. 

9  111.  App.  557),        -     211,882,884 
Gandolfo  v.   Appleton,  40  N. 

Y.  533,      -       452,  523,  917,  918,  985 

V.  Walker,  15  Oh.  St.  251,       605 

Gannett   v.    Cunningham,    34 

Me.  56,      -        -        -         1018,  1019 
Gano  V.  Samuel,  14  Oh.  593,     328, 
349,  351,  370,  372,  395 
Gansevoort    v.    Kennedy,    30 

Barb.  279,         -       -        -    432,  434 
V.    "Williams,    14    AVend. 

133,         -        317,  349,  362,  364,  448 
Gantt  V.  Gautt,    6    La.  Ann. 

677, 

Garbett  v.  Yeale.  5  Q.  B.  408; 

13  L.  J.  Q.  B.  98,  - 
Gard  v.  Clark,  29  Iowa,  189,   - 


Garland  v.  Agee,  7  Leigh  (Va.), 
362, 701 

V.   Jacomb,  L.  R.   8  Ex. 

216,         -        -        329,  347,  423,  691 

Garner    v.    Myrick,    30    Miss. 


302 

1102 

692, 

693 


Gardenhire  v.  Smith,  39  Ark. 
280, 59 

Gardiner    v.    Bataille,    5    La. 
Ann.  597,        -        -        -        -      575 

v.  Fargo,  58  Mich.  72,      -     639, 

850,  856 

V.  Levaud,  2  Yeates,  185,     1162 

Gardner  v.   Baker,   25  Iowa, 

343, 386 

V.  Conn,  34  Oh.  St.  187,   -     526, 

694 

V.  Northwestern  Mfg.  Co. 

52  111.  367,  -  -  -  1151,  1153 
Gardom,  Ex  parte,  15  Ves.  286,  349 
Garland,  Ex  parte,  10  Ves.  110,       51, 

600,  739 


448, 


1168 
5,  8 


Garnett  v.  Richardson,  35  Ark. 

144, 

Garnier  v.   Gebhard,    33  Ind. 

225, 633 

Garrard  v.  Dawson,  49  Ga.  434,  749 
Garret  v.  Taylor,  1  Esp.  117,  1024 
Garrett's  Appeal,   100  Pa,  St. 

597, 496 

Garrett  v.  Bradford,  28  Gratt. 

609,         .       .       -       .      764,  775 
V.  Handley,  5  Dow.  &  R, 


319;  s.  C.  4  B.  &  C.  664;  S. 

C.  3  id.  463,    -        -        -        - 

V.  Muller,  37  Tex.  589,      - 

Garretson  v.  Weaver,  3  Edw. 

Ch.  (N.  Y.)  385,      - 
Gartside  Coal  Co.  v.  Maxwell, 

22  Fed.  Rep.  197, 
Garvin  v.  Paul,  47  N.  H.  158,    1072, 

1106 
Gaselys  v.  Separatists'  Soc.  13 

Oh.  St.  144,  .... 
Gaslin  v.  Pinney,  23  Minn.  26, 
Gass  V.  N.  Y.,  Providence  & 

Boston  R.  R.  99  Mass.  220,    - 

V.  Stinson,  3  Sumn.   93, 

V.  Wilhite,   2  Dana,   170, 

Gaston  v.  Drake,   1  Nev.  175, 
Gates  V.  Beecher,  60  N.  Y.  518 

(19  Am.  Rep.  207)  {infra,  3 

Th.  &  C.  404),        -       -       397,  697 

V.  Bennett,  33  Ark.   475,      406 

V.  Fisk,  45  Mich.  523,       704,  705 

V.  Fraser,  6  111.  App.  229,     209, 

573,  932 

V.  Graham,  12  Wend.  53,     410, 

421 

V.  Hughes,  44  Wis.  332,   -     519, 

523,  534 

V.  Mack,  5  Cush.  613,        -    1094 

V.  Manny,  14  Minn.  21,    -    1158 


1019 
1023 

993 

4,7 


13 

233 

66 

495 

18 

111 


Ixxxi 


Gat.] 


TABLE  OF  CASES. 


[Gil. 


Gates  V.  Pollock,  5  Jones  (N. 

Ca.),  L.  844,   -        -        -        -      415 

V.  Watson,  54  Mo.  585,    -     101, 

446,  419,  456.  1051,  1068 
Gathriglit  v.  Burke,  101   lud. 

590, G21 

Gauger  v.  Pautz,  45  Wis.  449,  887 
Gault  V.  Calland,  7  Leigh,  594,  732 
Gaus  V.  Hobbs,  18  Kau.  500,     78,  446, 

507 
Gaut  V.  Reed,  24  Tex.  4^,      246,  535, 

743,  744,  749 

Gavin  v.  Walker,  14  Lea,  643,       156, 

157,  329,  344,  371,  374,  443,  1153 

Gay  V.  Bo  wen,  8  Met.  100,       -      701 

V.  Fretwell,  9  Wis.  186,     -      95, 

1138,  1155 

V.  Johnson,  33  N.  H.  167,     144, 

149,  1099 

V.  Johnson,  45  N.  H.  537,       453 

V.  Seibold,   97  N.  Y.  472 

(49  Am.  Rep.  533),  -        -      198 
V.  Waltinan,  89  Pa.   St. 

453,         ...        -     336,  1072 
Gaylord  v.  Irahoff,  26  Oh.  St. 

317  (20  Am.  Rep.  762 ;  15  Am. 

Law  Reg.  (N.  S.)  477),  -        -     1131 
Geddes'  Appeal,  84  Pa.  St.  482,     239, 

Pa.  St.  442,'       -        -      308,  309 

Geddes  V.   Adams,    11    Gray, 

384, 1074 

V.  Simpson,  2  Bay  (S.  Ca.), 

533, 701 

V.  Wallace,  2  Bligh,  270,     43,  56, 

211,  215,  459,  759,  922 
Gedge  v.  Traill,  1  Russ.  &  My. 

281, 926 

Geery  v.  Cockroft,    33  N.   Y. 

Superior  Ct,  146,    -        -        -    1046 

V.  Geery,  79  N.  Y.  565,    971,  972 

Gellar,  Ex  parte,  1  Rose,  297,  16, 

258 
Geller,  Ex  parte,  3  Mad.  263,  -  833 
Genesee  Sav.   Bank  v.  Mich. 

Barge  Co.  53  Mich.  164,        -     1155 
George  v.  Tate,  102  U.  S.  564,     401, 

406 


George  v.  Wamsley,  G4  Iowa, 

175,  -  -  -  560,  565,  566 
Georgia  Co.  v.  Castleberry,  43 

Ga.  187,  .       -       -        .      505 

Geortner    v.    Canajoharie,     3 

Barb.  625,  -  -  -  566,  994 
Gerard  v.  Basse,  1   Dall.  119,     377, 

379,  380,  414 
V.  Gateau,  84  111.  121  (25 

Am.  Rep.  438),  -  -  -  594 
Gere  v.  Clarke,  6  Hill,  350,  -  714 
Gerhardt  v.  Swaty,  57  Wis.  24,     389, 

463,  480 
German  Bank  v.  Schloth,  59 

Iowa,  516,  -  -  -  265,  382 
Gernon    v.    Hoyt,    90    N.   Y. 

631, 443 

Getchell  v.  Foster,  106  Mass. 

42,  28,  191,  200,  201,  443,  444,  524 
Gething  v.  Keighley,  9  Ch.  D. 

547,  -        -        .        -       959,  964 

Gibbs  V.  Bates,  43  N.  Y.  192,  -      629 

V.  Merrill,  3  Taunt.   307,       148 

Giblett  V.  Read,  9  Mod.  459,     -      005 
Gibson  v.  Lupton,  9  Bing.  287,         65 

V.  Moore,  6  N.  H.  547,     861,  866 

V.  Oliio  Farina  Co.  3  Dis- 
ney, 499,         -        -        -        -      905 

V.  Stevens,  7  N.  H.  353,     53,  598, 

599,  1106 
V.  Stone,  43  Barb.  385 ;  28 

How.  Pr.  468,        ...        60 

V.  Warden,  14  Wall.  344,     407, 

416,  418 
Giddings  v.  Palmer,  107  Mass. 

269,         .       .       -       -      551,  561 

V.  Seevers,  34  Md.  863,     -      646 

Gilbank  v.  Stephenson,  31  Wis. 

593, 85 

Gilbert's  Appeal,    78    Pa.    St. 

266, 744 

Gilbert  v.    Whidden,    20    Me. 

367,         -       -        -  1140, 1142,  1159 

V.  Wiman,  1  N.  Y.  550,     630, 

639 
Gilbraith  v.  Lineberger,  69  N. 
Ca.  145,  .       -       -       -      99,  1148 


Ixxxii 


Gil.] 


TABLE  OF  CASES. 


[God. 


Gilchrist  v.    Brande,  58  Wis. 

184,  -  348,  C03,  C21,  1151,  1153 
Gilhooly  v.  Hart,  8  Daly,  176,     770, 

783 
Gill  V.  Geyor,  15  Ob.  St.  899,  -     2:10, 

231,  815 

V.  Ferris,  83  Mo.   156,     43,   193, 

576 

V.  Kulin,  6  S.  &  R.  333,    -        17 

V.  Lattimore,  9  Lea,  381,       5C0, 

1131,  1133 
V.   Morrison,  26  Up.  Can. 

C.  P.  134,  ....  68 
Gillan  v.  Morrison,   1  DeG.   & 

S.  421,  ...  -  459,  759 
Gillaspy  v.  Peck,  46  Iowa,  461,  847 
Gillett  V.  Gaffuey,  3  Colorado, 

351, 305 

V.  Hall,  13  Conn.  426,      907,  984 

V.  Thornton,  L.  R.  19  Eq. 

599,         -        -        -        -      216,  223 

V.  Walker,  74  Ga.  291,      -    10G2 

Gillies   V.    Colton,    23    Grant's 

Ch.  (Up.  Can.)  123,        -  59,  69 

Gillig  V.  Lake  Bigler  Road  Co. 

3  Nev.  214,  -  -  -  -  1063 
Gillham  v.  Kerone,  45  Mo.  487,     257. 

260,  1110 
Gillilan  v.  Sun   Mut.  Ins.  Co. 

41  N.  Y.  376,  -  -  681,  6S2,  633 
Gillow  V.    Lillie,    1   Bing.    N. 

Cas.  695,  -        -        -      315,  346 

Gilly  V.   Singleton,  3  Litt.  (Ky.) 


219, 


Oilman  v.  Foote,  32  Iowa,  560, 
V.  Vaughan,  44  Wis.  646, 


697 

5:37 

786, 

986 

V.   Williams,  7   Wis.  339 

(now  overruled),    -        -        -    1131 
Gilmore  v.  Black,  11  Me.  485,  64 

V.  Merritt,  63  Ind.  535,     -       156 

V.  North  Amer.  Land  Co. 

Peters.  C.  C.  460,  1111,  1113 

V.  Patterson,  36  Me.    544,       331 

Gilpatrick  v.  Huuter,  34  Me.  18,      386 
Gilpin  V.   Enderbey,   5  B.    & 
Aid.  954,        -        -        -    16,  47,  56 


Ginesi   v.    Cooper,   14   Ch.    D. 

596,  -        663,  664,  C66,  667,  668 

Giovanni  v.  First  Natl.  Bk.  55 

Ala.  305  (38  Am.    Rep.    723) 

(overruling  s.  c.  51  id.  17()),  1131 
Glass  Co.  v.  Ludlum.  8  Kan.  40,  734 
Glasscock  v.    Smith,   25  Ala. 

474,  ...  -  690,  691 
Glassington    v.    Thwaites,     1 

Sim.  &  Stu.  124,  -  -  306,  988 
V.  Thwaites,  Coop.  temp. 

Brougham,  115,  -  -  -  243 
Gleadow  v.  Hill   Glass   Co.   13 

Jur.  10-20,  ....  767 
Gleason  v.  Clark,  9  Cow.  57,  -      700 

V.  McKay,  134  M  iss.  419,       176 

V.  Van  Aernam,  9  Oregon, 

343,         ....       859,  919 

V.  White,  34  Cal.  258,       -      735 

Glen  &  Hall  Mfg.  Co.  v.  Hall, 

61  N.   Y.    226  (rev.  6  Lans. 

158), 663 

Glenn  v.  Arnold,  56  Cal.  631,  -  189 
V.  Caldwell,  4  Rich.  Eq. 

(S.  Ca.)  168,    -        -        -        -      883 

V.  Gill,  3  Md.  1,       103,  104,  105, 

834 
Glidden  v.  Taylor,  16  Oh.   St. 

509, 140 

Glossop  V.  Coleman,    1   Stark. 

35,  -  .  -  -  -  -  1023 
Glover    v.    Tuck,    24    Wend. 

153, 876 

Glyn  V.   Hood,  1  Giff.   328;  1 

De  G.  F.  &  J.  334,  -  -  927 
Glynn  v.  Phetteplace,  26  Mich. 

383,  -  -  543,  852.  910, 931 
Goble  V.  Gale,   7  Blackf.    218 

(41  Am.  Dec.  219),         -        -    1023 

V.  Howard,  13  Oh.  St.  165,       894 

Goddard  v.  Brown,  11  Vt.  278,     445, 

1053 

V.  Cox,  2Stra.  1194,         -      495 

V.  Hapgood,  25  Vt.  351  (CO 

Am.  Dec.  272),       -        -        -      569 

V.  Hodges,  1  Cr.  &  M.  33,        55, 

852,  854 


Ixxxiii 


God.] 


TABLE  OF  CASES. 


[Gou. 


Goddard  v.  Ingram,  3  Q.  B.  839,       703 

V.  Pratt,  16  Pick.  412,        33,  64, 

83,  150,  153,  589,  608,  609, 
611,  622,  1156 

V.  Eenner,  57  Ind.  532,    403,  404 

Godden  v.  Kimmell,  99  U.  S. 

201, 942 

Godfrey  v.  White,  43  Mich.  171,    282, 

294,  313,  767,  770,  775,  777, 

785,  907,  974,  975,  976,  977 

Goedde,  Re,  6  Baukr.  Reg.  295,     832, 

833 
Goelet  V.  McKinstry,  1  Johns. 

Gas.  405,  -  -  -  724,  746 
Goell  V.  Morse,  126  Mass.  480,  63 
Goembel  v.  Arnett,  100  111.  34,      551, 

560 
Goepper  v.  Kinsinger,  39  Oh. 

St.  429,  -        -       -      283,  286 

Goesele   v.  Bimeler,  14  How. 

589  (a Jig.  5  McLean,  223),  -  13 
Goldie  V.  Maxwell,  1  Up.  Can. 

Q.  B.  424,  -  -  -  205,  439 
Golding  V.  Vaughan,  2  Chitty, 

436,  .        .        -        .       722,  723 

Goldman  v.  Page,  59  Miss.  404,     1028 
Goldshorough  v.  McWilliams, 

2  Cranch,  C.  C.  401,  -  -  858 
Goldsmith  v.   Sachs,    17  Fed. 

Rep.  726;  8  Saw.  110,  13,  870,  872 
Goll  V.  Hinton,  8  Abb.  Pr.  122,     1105 

V.  Hubbell,  61  Wis.  293,     1132 

Gomersall    v.    Gomersall,    14 

Allen,  60,  ....  873 
Goodbar  v.  Gary,  4  Woods,  663; 

16  Fed.  Rep.  316,  -        -      566 

Goodburn  v.  Stevens,  5  Gill,  1 ; 

1  Md.  Ch.  420,       290,  297,  298,  580, 

794,  801 
Goode  V.  Harrison,  5  B.  &  Aid. 

147,  -  -  -  143,  146,  611 
V.  Linecum,  1  How.  (Miss.) 

281,         ....       317,  373 

V.  McCartney,  10  Tex.  193,      43, 

317,  362,  1040 

Goodenow  v.  Jones,  75  111.  48,     503, 

507,  508,  510,  511 


Goodin  v.  Ai-mstrong,  19  Ohio, 
44, 858,  860 

Goodman  V.  Henderson,  58  Ga. 
567, 676 

v.Whitcomb,  1  Jac.  &  W. 

589,         ....      313,  314 

V.  White,  25  Miss.  163,    -      317 

Goodnow  V.   Smith,   18  Pick. 

414, 386 

Goodrich  v.  Leland,  18  Mich. 

110, 446 

Goodson  V.  Cooly,  19  Ga.  599,  870 
Good  speed  v.  South  Bend  Plow 

Co.  45  Mich.  237,   -       526,  694,  707 

V.   Wiard    Plow    Co.   45 

Mich.  322,       ...        .      707 

Goodwin  v.  Einstein,  51  How. 

Pr.  9, 803 

Gordon's  Estate,  11  Phila.  136,  836 
Gordon  v.  Bankard,  37  111.  147,     199, 

1154 

V.  Boppe,  55  N.  Y.  665,    -     875, 

877 

V.  Buchanan,  5  Yerg.  7,  -      333 

V.  Cannon,  18  Gratt.  387,     338, 

555,  825 

V.  Freeman,  11  III.  14,      -     381, 

583,  681,  684 

V.  Gordon,  49  Mich.  501,     286, 

917 

V.  Janney,  Morris  (Iowa), 

183, 1143 

V.  Kennedy,  36  Iowa,  167,      828 

V.  Tyler,  53  Mich.  629,      -   1039, 

1040 
Gorham  v.   Farson,   10  N.  E. 

Rep.  1;  119  111.  425,       .        -      918 

Gorman  v.  Russell,  14  Cal.  531,         7, 

75,  241,  591,  1028 

V.  Russell,  18  Cal.  688,     -        75 


Gossett  V.  Weatherly,  5  Jones 
(N.  Ca.),  Eq.  46,     -        -        .      570 

Gott  V.  Dinsniore,    111  Mass. 
45, 73,  73 

Gough  V.  Davies,  4  Price,  200,      521 

Gould  V.  Gould,  35  N.   J.   Eq. 
37;  id.  563;  36  id.  380,  -      141 

Ixxxiv 


Gou.] 


TABLE  OF  CASES. 


[Gea. 


Gould  V.  Gould,  6  Wend.  263 

(aff'g  s.  c.  8  Cow.  168),  -    181,  1019 

V.  Horner,   12  Barb.  601,       216 

V.  Kendall,  15  Neb.  549,  -     111, 

114,  119,  137,  128 
Gould ing.  Ex  parte,  2  Gl.  &  J. 

118, 509 

Gouthwaite  v.   Duckworth,  2 

East,  421,  ....  80 
Gover  v.    Hall,   3  Har.   &  J. 

(Md.)  43,  ...  952,  903 
Gow  V.  Forster,  26  Ch.  D.  672,  605 
Go  wan  v.  Jackson,  20  Johns. 

176,  -  -  399,  1155,  1158,  1159 
V.    Jeffries,   2  Ashmead, 

296, 591 

V.  Tun  no.  Rich.  Eq.  Cas. 

(S.  Ca.)  369,  -  -  -  750,  847 
Grabenheimer  v.  Riudskoff,  64 

Tex.  49,  -        -       43,  105,  1109 

Grace  v.  Smith,  2  W.  Bl.  998,    16,  47 
Grady  v.    Robinson,    28    Ala. 

2S9,  -     72,  74,  83,  293,  416,  417 

Graeff  v.  Hitchman,  5  "Watts, 

454,  -  -  439, 440,  445,  446 
Graff  V.  Kinney,  37  Hun,  405; 

15  Abb.  N.  Cas.  397,  -  -  139 
Grafton  Bank  v.  Moore,  13  N. 

H.  99  (38  Am.  Dec.  478),      -    1149, 

1151,  1155 
Graham  v.  Boy n  ton,  35  Tex. 

712, 1124 

V.  Holt,  3  Ired.  (S.  Ca.)  L. 

300  (40  Am.  Dec.  408),  -        -      856 

V.  Howell,  50  Ga.  203,      -    1171 

V.  Meyer,  4  Blatchf.   129,      468 

V.  Pocock,  L.    R.  3  P.  C. 

345, 468 

V.  Robertson,  2  T.  R.  282,     753, 

895,  8915 
313,     703, 


Granger    v.   McGilvra,  24  111. 

152,  -  326,  331,  681,  682,  1039 
Grant,   Re,    6    Law  Reporter, 

158, 400 

V.  Bryant,  101  Mass.  567,      230 

V.  Crowell,   43  N.  J.  Eq. 


V.  Selover,  59  Barb, 

1  C.   &  M 


704 


-~ —  V.  Whichelo, 

188, 709 

Gram  v.  CadweU,  5  Cow.  489,      823, 

383,  683,  684,  1044 

V.  Seton,  1  Hall,  262,       414,  416 


524, 

—  V.  Hardy,  33  Wis.  6G8,    - 

—  V.  Holmes,  75  Mo.  109,    - 

—  V.  McKinney,  36  Tex.  62, 

—  V.  Masterton,  55  Mich.  161, 

—  V.  Poillon,  20  How.  162,  - 

—  V.  Shurter,  1  Wend.  148, 


753 
307 
387 
742 
981 
908 
747 
Graser  v.  Stellwageu,  25  N.  Y. 

315,         ....      325,  403 
Grasswitt     v.     Connally,     27 

Gratt.  19,        -        -        -        -      105 
Gratz  V.  Bayard,  11  Serg.  &  R. 
41,  -       -       -        598,  599,  605,  733 

V.  Stump,  Cooke  (Tenn.), 

493,         ....    456,  1051 
Graves  v.   Boston  Ins.  Co.  2 

Cranch,  419,  ....      409 

V.  Cook,  2  Jur.  N.  S.  475,      876 

V.  Hall,  33  Tex.  605,        338,  340 

V.  Kellenberger,    51    Ind. 

66,  ...        257,  343,  409 

V.  Merry,  6  Cow.  701  (16 

Am.  Dec.  471),      -        613,  618,  698 
Gray  v.  Badgett,  5  Ark.  16,     -    1079 

V.  Brown,  22  Ala.  263,     -      385 

V.  Chiswell,  9  Ves.  118,     825,  828 

V.  Clement,  12  Mo.   App. 

579, 734 

V.  Cropper,  1  Allen.  337,      480 

V.  Gibson.  6  Mich.  300,     78,  1140 

V.  Haig,  20  Beav.  219,       -      983 

V.  Larrimore,  3  Abb.  (U. 

S.)  542,  ....      930 

V.  McMillan,  22  Up.  Can. 

Q.  B.  456,        635,  636,  637,  640,  879 

V.  Palmer.  9  Cal.  616,       13,  150, 

279,  294,  301,  9T0,  976 

V.  Rollo,  18  Wall.  631,      -     1081 

V.  Steedman,    63  Tex.  95,     1121 

V.  Ward,  18  111.  32,      -    329,  347 

363,  420,  437,  430 


Ixxxv 


Gka.] 


TABLE  OF  CASES. 


[Gel 


Gray  v.  Washington,  Cooko, 
321, 964 

V.   Williams,   9  Humph. 

503,        ....        C36,  640 

Grazebroolr,  Ex  parte,  2  Deac. 
&  Ch.  186,     -        -        -        634,  843 

V.   McCreedie,   9  Wend. 


437, 


380 


Greathouse  v.  Greathouse,  60 

Tex.  597.  ....  850 
Greatrex  v.  Greatrex,  1  DeG. 

&  S.  693,  ....  814 
Great  Westei'n   R'y  v.  Preston 

&  Berlin  R'y,  17  Up.  Can.  Q. 

B.  477, 45 

Great  Western  Tel.  Co.,  Re,  5 

Biss.  363,  -  -  -  -  208 
Greeley  v.  Wyeth,  10  N.  H.  15,     411, 

430,  1037 
Gregg  V.   Fisher,  3  111.   App. 

261,  -  328,  341,  348,  361,  370 
V.  James,  Breese  (111.),  107 

(12  Am.  Doc.  151),  381  681,  1079 
Gregory    v.   Dodge,   4  Paige, 

557, 1169 

V.  Martin,  78  111.  38,         -    1154 

V.    Menefee,    83  Mo.    413,      733 

742,  772,  78o 

V.   Patchett,  33  Beav.  593,      435 

Green  v.  Beala,  2  Caines,  254,  377, 
379,  380,  414,  421 
V.  Beesley,  2  Biug.  N.  Cas. 

108, 27,67 

— -  V.  Briggs,  6  Hare,  395,  -  70 
V.  Castlebury,  77  N.  Ca. 

164, 908 

V.  Caulk,  16  Md.  556,        -    1159 

V.  Chapman,  27  Vt.  236,     899, 

900,  905,  1095 

V.  Edick,  50  N.  Y.  613,    -    1170 

V.  Pyne,  1  Ala.  235,  -        -    1051 

V.  Raud,  2  Conn.  254,       -      377 

V.  Tanner,  8  Met.  411,      446,  451 

V.  Virden,  22  Mo.  506,        -     733 


V.  Waring.  1  W.  Bl.  475, 


Greene  v.   Ferrie, 
(S.  Ca.)  164,    - 


1    Desaus. 


234 


564 


Greene  v.  Graham,  5  Oh.  264,      294, 

297,  975 
V.  Greene,  1   Oh.  535  (13 

Am.  Dec.  642),  -  -  281,  290 
Greenebaum  v.  Gage,  61  III.  46,  677 
Gieenewald    v.    Rathfon,     81 

lud.  547,  ....  897 
Greenham  v.    Gray,    4    Irish 

Com.  L.  501,  -  -  -  17,  35,  873 
Greenleaf  v.    Burbank,  13  N, 

H.  454, 365 

V,  Quincy,  12  Me.   11  (23 

Am.  Dec.  145),  -  -  -  705 
Greenslade  v.   Dower,  7  B.  & 

C.  635;  1  Man.   &  Ry.   640,     329, 

343,  345,  371 
Greentree  v.    Rosenstock,    01 

N.  Y.  583,  ....  1124 
Greenup  v.    Barbee,    1    Bibb, 

320,  -  -  -  -  72,  73,  458 
Greenwald  v.   Kaster,  86  Pa. 

St.  45,  -  -  -  -  386,  387 
Greenwood's  Case,  3  De  G.  M. 

&  G.  470,  ...  72,  323 
Greenwood    v.     Brodhead,     8 

Barb.  593,       ....      929 

V.  Sheldon,  31  Minn.  254,        219 

Greer  v.  Bush,  57  Miss.  575,     650,  651 
Gribbia  v.  Thompson,  28  111. 

61, 1094 

Gridley  v.  Conner,  2  La.  Ann. 

87,  -        .        -        786,  907,  933,  993 

V.  Dole,  4  N.  Y.  486,       851,  868, 

878,  881 
Grieff  v.  Boudousquie,  18  La. 

Ann.  631,        ....        91 

V.  Kirk,  15  La.  Ann.  320,      1086 

V.  Kirk,  17  La.  Ann.  25.  -      653 

Grioner  v.    Ulerey,    20   Iowa, 

206, 1143 

Grier  v.  Hood,  25  Pa.  St.  430,  -      377 
Griffey  v.  Northcutt,  5  Heisk. 

746,  294,  297,  300,  769,  770,  773 

Griffie  v.  Maxey,  58  Tex.  210,       286, 
560,  1131,  1132,  1133 
Griffin,  Ex  parte,  3  Ont.  App. 

1, 513 


Ixxxvi 


Gel  J 


TABLE  OF  CASES. 


[Gwi. 


Griffin  v.  Cranston,  10  Bosw.  1 ; 

1  id.  281,        ...       -      562 
V.  Doe  ex  dem.  Stoddard, 

12  Ala.  783,    -        -        -        -    1145 

V.  Orman.  9  Fla.  22,  -       551,  C39 

V.  Samuel,  6  Mo.  20,  -        -      45(5 

V.  Spence,  69  Ala.  393,     714,  717 

Griffith  V.  Buck,  13  MJ.  102,        551, 

552,  638,  824 
V.  Buffuni,  22  Vt.  181  (54 

Am.  Dec.  64),  32,  156,  157,  445 

V.  Carter,  8  Kan.,  565,      -      175 

V.  Chew,  8  S.  &  R.  17,     -      900 

V.     Vanheythuysen,      9 

Hare,  85,        -        -        -        -      923 

V.  Willing,  3  Bin.  317,      -      899 

Griffitlis  V.  Griffitlis,  3  Hare, 

587, 710 

Griggs  V.  Clark,  23  Cal.  427,  -     181, 

770,  772,  773,  907,  908 

Grigsby  v.  Nance,   3  Ala.  347,      875, 

876,  880 
Grim's  Appeal,  105  Pa.  St.  375,     735, 
739,  743,  745,  923 
Grinnan  v.  Baton  Rouge  Co.  7 

La.  Ann.  638,         -        -        -      618 
Grissom  v.  IMoore,  106  Ind.  296,     290, 

297 
Grisvvold  v.  Griswold,  14  How. 

Pr.  446,  ....     1086 

V.  Haven,  25  N.  Y.   595,      473 

V.  Hill,  1  Paine,  C.  C.  390,       941 

V.  Waddington,  16  Johns. 

438  (affg.  15  id.  57),      325,  570,  581, 

582,  610 
Groenendyke  v.    Coffeen,    109 

111,  325,  -        952,  954,  955,  963 

Groesbeck  v.  Brown,  2  How. 

Pr.  21, 3S0 

Grossini  v.   Perazzo,    66    Cal. 

545,         ...        -       753,  935 
Grosvenor  v.  Austin,  6  Oh.  103 

(25  Am.  Dec.  743),  -      828,  832 

V.  Lloyd,  1  Met.    19,      152,  157, 

608 
Grove  v.   Fresh,    9  Gill  &  J. 

280,         ....       764,900 


Grove  v.  Miles,  85  111.  85,         -      761 
Groves  v.  Tallraan,  8  Nev.  178,       936 


Grozier  v.  Atwood,  4  Pick.  234, 


59 


Grubb  V.  Cottrell,  62  Pa.  St.  23,     353, 

903,  1038 
Grund  v.  Van  Vleck,    69  111. 

478,  ....  407,  469 
Guckenheimer  v.  Day,  74  Ga. 

1, 1123 

Guerand  v.  Dandelet,  32  Md. 

561, 676 

Guice  V.  Thornton,  76  Ala.  466,       84, 
322,  323,  362,  308,  440,  483,  1140 
Guidon    v.    Robsoo,  2    Camp. 

302,  ....  1023,  1067 
Guild  V.  Belcher,  119  Mass.  257,'    347, 

507,  509 

V.  Leonard,  18  Pick.  511,       560 

Guillou  V.  Peterson,  89  Pa.  St. 

163  (rev.  S.  C.  9  Phila.  225),  -  483 
Guimond  v.  Nast,  44  Tex.  114,  1086 
Guion  V.  Trask,  1  DeG.    &  J. 

379, 185 

Gulick  V.  Gulick,  14  N.  J.   L. 

578,  150,  330,  331,  575,  858,  1155 
v.   Gulick,  16  N.    J.    L. 

186,  ....  530,  881 
GuUat  v.  Tucker,  3  Cranch,  C. 

C.  33, 347 

Gullich  V.  Alford,  61  Miss.  224,        86 
Gumbel  v.    Abrams,    20    La. 

Ann.  568,        -        -        -        .      457 

V.  Koon,  59  Miss.  264.     155,  193 

Gunn  V.  Central  R.  R.  Co.  74 

Ga.  509,  .... 

Gunnell  v.  Bird,  10  Wall.  304, 

Gunter  v.  Jarvis,  25  Tex.  581, 

V.  Williams,  40  Ala.  561, 


133 

810, 

812 

725, 

1057 


416,  417 
Guptil  V.  McFee,  9  Kan.  30,  -  1131 
Gurler  v.  Wood,  16  N.  H.  539,  405 
Gurr  V.  Martin,  73  Ga.  528,  -  59 
Guyton  v.  Flack,  7  Md.  398,    -     824, 

929,  1003 
Gwin  V.  Selby,  5  Oh.  St.  96,    -      5G7 
Ixxxvii 


Gwi.] 


TABLE  OF  CASES. 


[Hai» 


Gwinn  v.  Rooker,  24  Mo.  290,     414, 

416,  420 
Gwynn  v.  Duffield,   66  Iowa, 

708. 462 

Gvger's  Appeal,  62  Pa.  St.  73 
'(1  Am.  Rep.  382),  -      769,  770,  773, 
785,  786,  791,  798,  927,  986,  987 
Gjnne  v.  Estes,  14  Lea,  062,    -      740 

H. 


Haas  V.    Roat,    16    Hun,    526 

(affd.  in  26  Hun,  633),  - 
V.  Shaw.  91  Ind.  884  (46 


47 
139 
567 


Am.  Rep.  607),       -        -        - 
Haben   v.   Haishaw,   49  Wis. 

379, 

Habershon  v.  Blurton,  1  De  G. 

&  Sm.  121,     -        -      584,  928,  1103 
Hacker  v.  Johnson,  66  Me.  21,    1105, 

1107,  1111,  1112 
Hackett  v.  Multnomah  R'y  Co. 

12  Oregon,  134,      -        -        -      133 
Hackley  v.  Patrick,   3  Johns. 

536,         -        .        -       .      699,  700 
Hackwell    v.    Eustman,    Cro. 

Jac.  410,  -        -        -        .      739 

Hadden  v.  Shortridge,  27  Mich. 

212,         ....   1140,  1158 
Haddock  v.  Crocheron,  32  Tex. 

276  (5  Am.  Rep.  244),    623,  694,  695, 

704 
Haddon  v.  Ayres,  1  E.  &  E. 

118, 879 

Hafer,  In  re,   1  Bankr.   Reg. 

[147]  547,        -        -        -        -    1131 
Had  Held  v.  Jameson,  2  Munf. 

(Va.)  53,  ....      895 

Hagar  v.  Graves,  25  Mo.  App. 

164, 1039 

V.  Mounts,  3  Blackf.  57 ; 

id.  261, 347 

V.  Stone,  20  Vt.  106,       152,  1052 

Haggart  v.   Allan,  4    Grant's 

Ch.  (Up.  Can.)  36,        -        -      952 
Haggerty  v.  Granger,  15  How. 

Pr.  243, 338 


Haggerty  v.  Johnston,  48  Ind. 

41,  -       -       -       -       504,  634,  647 

V.  Juday,  58  Ind.  154,       -      538 

Hague   V.    Rolleston,   4  Burr. 

2174, 583 

Hahn  v.  St.  Clair  'Sav.  &  Ins. 

Co.  50  111.  456,  -  -  -  1151 
Haig  v.  Gray,  3  De  G.  &  Sm. 

741, 723 

Haight  V.   Arnold,   48    Mich. 

512, 1073 

V.  Burr,  19  Md.  130,       994,  1004 

Haines  v.  HoUister,  64  N.  Y.  1,       750 

V.  Knowles,  36  Mich.  407,     1106 

Hake  v.  Buell,  50  Mich.  89,  -  1141 
Haldeman  v.  Bank  of  Middle- 
town,  28  Pa.  St.  440,  -  -  348 
Halderman     v.      Halderman, 

Hempst.  C.  C.  559,  -  852,  858 
Hale  V.  Brennan,  23  Cal.  511,        978, 

.1136 
V.   Henrie,   2  Watts,   143 

(27  Am.  Dec.  289),         -       -      289 

V.  Plummer,  6  Ind.  121,        290, 

297 

V.  Railroad,  60  N.  H.  333,      405 

V.  Van  Saun,  18  Iowa,  19,     1091 

V.    Wetmore,   4  Oh.    St. 

600,         ....   11C8,  1169 

V.  Wilson,  112  Mass.  444,     871, 

897 
Haley  v.   Bellamy,  137  Mass. 

357, 233 

Halfhide  v.  Penning,  2  Bro.  0. 

C.  336, 233 

Hall,  Ex  parte,  1  Rose,  2;  17 

Ves.  63  (latter  is  fuller),      -     382, 

680 

,  Ex  parte,  3  Deac.  125,    -     634, 

843 
V.  Bainbridge,  1  M.    &  G. 

42, 438 

V.   Barrows,  4  DeG.  J.  & 

S.  150,     -        -       058,  G03,  665,  675 

V.  Clagett,  48  Md.  233.     313,  765, 

909,  953,  983 
V.  Cook,  69  Ala.  87,       450,  1051 


Ixxxviii 


Hat..] 


TABLE  OF  CASES. 


[Han. 


Hall  V.  Curzon,  9  B.  «fe  C.  646,     1169 

r  V.  Edson,  40  Mich.  651,       43,  78 

V.  Hall,  13  Beav.  414;  20 

id.  139 ;  3  Macn.  &  G.  79,     603,  988, 

991 

V.  Hall,  3  McCord,  Ch.  269.       825 

V.  Irons,  4  Up.  Cau.  C.  P. 

351, 385 

V.  Jones,  56  Ala.  493,      508,  519, 

616,  621,  707 
V.  Lannin,    30  Up.    Can. 

C.  P.  204,        -        -        -       864,  806 

V.  Lanuing,  91  U.  S.  160,       336, 

377,  1086,  1089,  1090,  1092 

V.  Lonkey,  57  Cal.  80,      939,  974 

V.  Sannoner,  44  Ark.  34,        211, 

763 
V.   Smith,   1  B.  &  C.  407 

(overruled  in  Ex  parte  Buck- 
ley, 14  M.  &  W.  469;  1  Ph. 

562), 346 

V.  Tay,  131  Mass.  192,       -      650 

V.  Thayer,  12  Met.  130,     -        75 

Hallack  v.  March,  25  111.  48,    -      336 
Haller    v.     Willamowicz,     23 

Ark.  566,        761,  770,  777,  898,  978, 

979 
Hallet  V.  Desban,  14  La.  Ann. 

529, 43 

Hallett  V.  Cumston,  110  Mass. 

29, 672 

V.  Cumston,  110  Mass.  33,       922 

Halliday  v.  Bridewell,   36  La. 

Ann.  238,        ....        43 

V.  Carman,  6  Daly,  422,  -      879 

V.  Doggett,  6  Pick.  359,    -    1018 

V.  McDougall,    20  Wend. 

81  (rev.  in  part,  22  id.  264),     1155, 

1156,  1157 
Halsey  v.  Norton,  45  Miss.  703 

(7  Am.  Rep.  745),         583,  753,  1026 

V.  Whitney,  4  Mason,  206,     383, 

415 
Halstead  v.   Shepard,  23  Ala. 

558,        276,  401,  403,  689,  991,  1039 
Halbted  v.  Schmelzel,  17  Johns. 

80,  -        -        -        -       849,  865 


Ham  V.  Hill,  39  Mo.  275,  -       G36,  637 
Hambridge  v.  De  la  Crouee,  3 

C.  B.  742,        -        -        -       377,  380 
Hamer  v.  Giles,  11  Ch.  D.  943,      987 
.Haraersley     v.     Lambert,      2 
Johns.  Ch.  508,     529,  747,  749,  750, 

925 
Hamil  v.  Stokes,  4  Price,  161 ; 

Dan.  20,  -        595,  805,  807,  809 

Hamill  v.  Hamill,  27  Md.  679,     589, 

756,  999 

v.Willett,  6  Bosw.  533,    105,547 

Hamilton's  Appeal,  103  Pa.  St. 

308,  -    *  -        -        -        -      377 

Hamilton,  lu  re,   1   Fed.  Rep. 

800,         -        -        150,  838,  839,  845 

V.  Buxton,  6  Ark.  24,     456,  1051, 

1068 

V.  Douglas,  46  N.  Y.  218,      138 

V.  Einer,  20  La.  Ann.  391,      447 

V.  Hodges,  30  La.    Ann. 

Pt.  II,  1390,  -        -        -      430 

V.  Phoenix    Ins.   Co.    106 

Mass,  395,       -        -        319,  336,  427 

V.  Purvis,  2  Pa.  177,  -      403 

V.  Smith,  5  Jur.  N.  S.  32,        89 

V.  Seaman,  1  Ind.  185,      -      695 

V.  Summers,  12   B.  Mon. 

11  (54  Am.  Dec.  509),  353,  361, 

700,  737 
Hammond  v.  Aiken,  3  Rich. 
Eq.  (S.  Ca.)  119,      -        -      612,  619 

658 
949 
380 


■  V.  Douglas,  5Ves.  539, 
V.  Hammond,  20  Ga.  556, 
V.  Harris,  2  How.  Pr.  115, 
V.  He  ward,  11  Up.  Can.  C. 


474 


P.  261, 

V.  Heward,  20   Up.  Can. 

Q.  B.  36,         ...     474,  1094 

V.  Paxton,   58  Mich.  393,       295 

V.  St.  John,  4  Yerg.  107,     1055 

Hamper,    Ex    parte,   17  Ves. 

403,         ...  16, 55,  257 

Hamsmith,  v.  Espy,  13  Iowa, 

439,         ...        -       847,  848 
Hancock  v.  Haywood,  3  T.  R. 

433, 722 

Ixxxix 


Han.] 


TABLE  OF  CASES. 


[Hae. 


Hancock  v.  Hintrager.CO  Iowa, 

374,  ....  109,205 
Handlin,  Re,   12  Bankr.  Reg. 

49;  3Biss.  290,       -        -        -    1131 

V.  Davis,  81  Ky.  34,  -        -        88 

Hanff  V.  Howard,  3  Jones  (N. 

Ca.),  Eq.  440,  -        -        -      281 

Hanger  v.  Abbott,  6  Wall.  533, 

535, 582 

Hankey    v.    Becht,   25    Minn. 

212,  ....  257,  259 
V,  Hammock,  Buck,  210; 

3  Madd.  138,  ....  GOO 
Hanks  v.  Baber,  53  111.  292,      -     770, 

815,  888,  917 

V.  Hinson,  4  Porter  (Ala.), 

509, 285 

Hauna  v.  Andrews,  50  Iowa, 

462, 6G7 

V.  Flint,  14  Cal.  73,  -        -  43,  GO 

V.  Wray,  77  Pa.  St.  27,      -     737, 

1170 
Hanson    v.    Dodge,  134  Mass. 

273, 655 

V.  Eustace,  2  How.  053,  .      2S5 

V.  Paige,  3  Gray,  239,      457,  754 

Han  way    v.    Robertshaw,    49 

Miss.  753;  R.  v.  H.  53  id.  713,  719 
Hapgood  V.  Cornwell,   48  111. 

64,  -  -  -  -  551.  553,500 
Haralson  v.  Campbell,  63  Ala. 

278,  ....   1004,  1130 

Harbour  v.  Reeding,  3  Mon- 
tana, 15,  ...  -  303 
Hardeman   v.    Tabler,    33  La. 

Ann.  555,  -  .  -  .  457 
Harding,  Ex  parte,  13  Ch.  D. 

557, 45oa 

V.  Foxcroft,  6  Me.  76,       -  70,  71 

V.  Glover,  18  X^s.  281,      -      995 

V.  Hagar,  03  Me.  515,       178,  2G:J 

Hardy  v.  Blazer,  29  Ind.  226,  -      504 

V.  Cheney,  42  Vt.  417,       -  1050, 

1151,  1152 

V.  Donellan,  33  Ind.  501,      409 

V.  Mitchell,   67  Ind.  4y5,     5G9, 

825 


Hardy  v.  Norfolk  Mfg.  Co.  80 

Va.  404,  .        -         72,281,531,882 

V.  Overman,  36  Ind.  519,     569, 

848,  1130 
Hare,    Ex  parte,    Deac.    16;  2 

Jlont.  &  A.  478,  -  -  -  263 
Harferd    v.  Street,   46    Iowa, 

594, 1091 

Hargrave  v.  Conroy,  19  N.  J. 

Eq.  281,  -        -        -  43,  49,  923 

Hargreaves,  Ex  parte,  1  Cox, 

440,  -  '  -  -  -  -  837 
Harkey  v.   Tillman,  40    Ark. 

551, 278 

Harlan     v.    Moriarity,    3    G. 

Greene  (Iowa),  486,  -  -  543 
Harland  v.  Lilienthal,  53  N.  Y. 

438, 110 

Harlow  v.  Rosser,  28  Ga.  219,      410 
Haruian  v.  Johnson,  2  E.  &  B. 

61    (rev.    s.  C,  3  Car.  &   K. 

272),  ....  329,  477 
Harmon    v.  Clark,    13    Gray, 

114,  -  453,  553,  553,  838,  843 
Harper,  Ex  parte,  1  De  G.  & 

J.  ISO, 249 

V.  Fox,  7  Watts  &  S.  143,       377 

V.  GodsL41,   L.  R.  5  Q.  B. 

433, 274 

V.  Lamping,  33  Cal.  641,     481, 

810,  973,  974,  976 

V.  Wrigley,  48  Ga.    495,     383, 

411,  435 
Harrington  v.  Churchward,  29 

L.  J.  Ch.  521 ;  6  Jur.  N.   S. 

576 ;  8  W.  R.  303,  -  -  923 
V.  Ilighara,  13  Barb.  6G0; 

15  id.  534,  ...  -  336 
Harris.  Ex  parte,  1  Rose,  437; 

2  Ves.  &  B.  210,     830,  837,  833,  839 

V.  Farewell,  15  Beav.  31,     519, 

523 

V.  Farwell,  13  Beav.  403,       828 

V.  Fleming.  13  Ch.  D.  208,       907 

V.  Harris,  15  Ala.  710,      -      860 

V.  Harris,  39  N.  H.  45,      -     849, 

852,  861 


xo 


Has.] 


TABLE  OF  CASES. 


[Hab. 


Harris  v.  Hillegass,  54  Cal.  403,       49, 
575,  589,  945,  952 
v.^Lintlsay,  4  Wash.  C.  C. 

9S,  id.  271,  -        -        520,  523 

V.  McGregor,  29  Cal.  124,  5 

V.  McLeoJ,    14  Up.  Can. 

Q.  B.  1G4,       -        -        -        349,  358 
V,   Miller,   Meigs  (Tenn.), 

158  (33  Am.  Dec.  13S),     205,  420,  438 

V.  Peabody,   73  Me.    2G2,     824, 

825,  832,  833 

V.  Pearce,  5  111.  App.  022,     437, 

723 

V.  Visscher,  57  Ga.  229,    -    1131 

V.  Wade,  1  Chit.  322,        -      380 

V.  Wilson,  7  Wend.  57,     -      701 

Hairison,  Ex  parte,  2  Rose,  70,        70 

V.  Armitage,  4  Mad.  143,    910,  913 

V.  Bevington,   8  C.  &  P. 

703,         ...        - 
V.  Close,  2  Johns.  448, 


V.  Dewey,  40  Mich.  173,  - 

V.   Farrington,    36   N.    J. 

Eq.  107(affa.  37  id.  316), 
V.    Farrington,    38  N.   J. 

Eq.  1, 

-v.    Farrington,   38   N.   J. 


1033 
385 
932 


Eq.  358,  ...        - 

V.   Farrington,    40  N.   J. 

Eq.  553,  -        -        -        - 
V.  Fitzhenry,  3  Esp.  238, 


940 

964 

964 

984 
1016, 
1023 

V.  Gardner,  2  Madd.  198,       603 

V.  Jackson,  7  T.  R.  207,     414, 

416,  1088 

V.    McCormick,    69    Cal. 

616,         -        -    195, 454,  1049,  1095 

V.  Pope  (Iowa  Dist.   Ct. 

1855),  4  Am.  Law  Reg.  (O. 

,   S.),  313, 524 

V.    Righter,  11   N.  J.    Eq. 

389,  ....      924,  925 

V.  Sterry,  5  Cranch,  289,        340 

Harrod  v.  Hamer,  32  Wis.  16?,  3 

Harry  man  v.  Roberts,  52  Md. 
64-77 ;  20  Am.  Law  Reg.  (N. 
y.)873,    -        -        -        -  331 


Harshfield  v.  aaflin,  25  Kan. 

100(37  Am.  Rep.  237),  -  -  1101 
Hart's  Case,  1  Ch.  D.  307,  -  459 
Hart  V.  Alexander,  7    C.  &  P. 

746,  -  -  -  520,  010,  621,  622 
V.  Alexander,  2  M.  &  W. 

484,     505,  520,  523,  616,  617,  621,  622 

V.  Anger,  3S  La.  Ann.  341,       598 

V.  Clarke,  6  DeG.  M.  &  G. 

232  (reverses  19   Beav.  349) ; 

affd.  in  Clarke  V.  Hart,  6  H. 

L.  C.  633,  -  -  -  241,  785 
V.  Clarke,  6  H.  L.  Cas.  633 


(aflfg.  6  DeG.  M.  &  G.  232),  574 

V.  Kelley,  83  Pa.  St.  286,-       23, 

47,  48,  507,  510,  511 

V.  Long,  1  Rob.  (La.)  83,  696 

V.  Tomlinson,  2  Vt.  101,    507,  557 

V.  Withers,  1   Pa.  285  (21 

Am.  Dec.  382),        -        -      421,  422 

Y.  Woodruff,  24  Hun.  510,      700 

Hartan  v.    Eastern   R.    R.  114 


66 
423 

272 

886 

1045 

825 


Mass.  44, ' 
Harter  v.  More,  5  Blackf.  3G7, 
Hartford  F.  Ins.    Co.  v.  Ross, 

23  Ind.  179,     ...        - 
Hartley  v.  Manton,  5  Q.  B.  247, 

V.  White,  94  Pa.  St.  31,    - 

Hartman's  Appeal,  107  Pa.  327, 
Hartman  v.  Woehr,  18  N.    J. 

Eq.  383,     86,  577,  578,  589,  591,  780, 

781 
Hartness  v.  Thompson,  5  Johns. 

100, 148 

Hartnett  v.  Fegan,  8  Mo.  App. 

1, 300,  734 

Hartung  v.   Siccardi,  3  E.    D. 

Smith,  560,     -        -        -        -     1080 
Hartz  V.  Scbrader,  8  Ves.  317,     741, 

99'J,  1000,  1003 
Harvey  V.   Childs,  28  Oh.   St. 

319  (22  Am.  Rep.  387),  23,  47 

V.  Crickett,  5  M.  &  S.  336,       755 

V.  McAdams,  32  Mich.  472,     334, 

405 
V.  Penny  backer,  4  Del.  Ch. 

445,         ....       384,  909 


zci 


Har.] 


TABLE  OF  CASES. 


[Hay. 


Harvey  v.  Varney,  98  Mass.  118,    114, 

123,  921 

V.  Varney,  104  Mass.  436,      766, 

789,  9S3,  1005 
Harwood  v.  Jarvis,  5  Sneed, 

375, 399 

Hasbrouck  v.  Childs,  3  Bosw. 

105,  -        -        -       813,  816,  818 

Haseltine  v.  Madden,  7  Rich. 

(S.  Ca.)  L.  16,  -  -  -  1162 
Haskell  v.  Adams,  7  Pick.  59,       72, 


V.  Cliampion,  30  Mo,  136,       201 
V.  Moore,  29  Cal.  437,     239,  850, 

881 
V.  Vaughn,  5  Sneed,  618,       851 


Haskins  v.  Alcott,  13  Oh.  St. 

210,         ...        -    1061,  106G 

V.  Burr,  106  Mass.  48,      -        81 

V.  D'Este,  133  Mass.  356,     174, 

191,  1073 

V.  Everett,  4  Sneed,  531,     1105 

V.  Warren,  115  Mass.   514,       43 

Hasleham  v.  Young,   5  Q.   B. 

833;  Dav.  &  Mer.  700,  -  349,  350 
Haslett  V.   Street,   2  McCord, 

310  (13  Am.  Dec.  724),  1090,  10.)2 
V.  Wotherspoon,  2  Rich. 

(S.  Ca.)  Eq.  395,  -  -  8,  538 
Hasselman     v.    Douglass,    52 

Ind.  252,  -        -        -      629,  632 

Hastings  v.  Hopkinson,  28  Vt. 

108,  -        -        95,  323,  324,  325 

Hastings  Nat.    Bank  v.    Hib- 

bard,  48  Mich.  452,  100,  107,  196 
Hatch  V.  Wood,  43  N.  H.  633,    1023, 

1054 
Hatchett  v.  Blanton,  72  Ala. 

423,  -  -  -  281,  285,  288 
Hathe way's  Appeal,  52  Mich. 

112,  -  -  -  317,  368,  700 
Hatt,  In  re,  7  Up.  Can.  L.  J. 

103,  -  -  -  -  175,  176 
Hatton  V.  Stewart,  2  Lea,  233,     694, 

695,  698 
Hatzenbuhler    v.     Lewis,     51 

Mich.  585,        ....  1070 


Haughey  v.  Strickler,  2  Watts 

&  S.  411,  ...        -  1154 

Havana,  Rantoul  &  Eastern  R. 

R.  V.  Wash,  85  111.  58,  -  -  1019 
Haven  v.  Goodel,  1  Disney,  26,     694, 

695 

V.  Wakefield,  39  III.  509,     900, 

905 
Havens  v.  Hussey,  5  Paige,  80,     338, 

583 
Hawes  v.   Dun  ton,    1    Bailey 
(S.    Ca.),  146  (19  Am.   Dec. 

663), 352 

v.  Tillinghast,  1  Gray,  289,        71 

V.    Waltham,    18    Pick. 

451, 1103 

Hawkeye    Woolen    Mills    v. 

Conklin,  26  Iowa,  422,  -  560,  824 
Hawkins  v.  Appleby,  2  Sandf. 

421,         -        -        -^     -        -      472 

V.  Hastings  Bank,  1   Dil- 
lon, 462;  4  Bankr.  Reg.  108,     416. 

418 

V.  Lasley,  40  Oh.  St.  37,   -    lUOG 

V.  Lee,  8  Lea,  42,       -        -      700 

V.  Mclntire,  45  Vt.  496,    43,  59, 

66 
Hawks  V.  Hinchcliff,  17  Barb. 

492, 53S 

Hawkshaw     v.     Parkins,      2 

Swanst.  539,  -  -  -  383,  415 
Hawley  v.  Atherton,  39  Conn. 

309, 1126 

V.  Dixon,  7  Up.  Can.  Q.  B. 

218, 45 

V.  Hurd,  56  Vt.  617,         .    1068 

V.  Keeler,   62    Barb.   231 

(affd.  53  N.  Y.  114),        -        .        68 

Hawtayne  v.  Bourne,  7  M.  & 
W.  595, 320 

Hayden,  Ex  parte,  1  Brown's 
Ch.  453, 832 

V.  Cretcher,  75  Ind.  108,        693, 

694 

V.  Hill,  52  Vt.  259,    -        -      655 

Haydon   v.    Crawford,   8  Up. 
Can.  Q.  B.  (old  ser.)  583,       -  45,  59 
xcii 


Hay.] 


TABLE  OF  CASES. 


[Heu 


Hayes  v.  Baxter,  65  Barb.  181,      8G7 

V.  Bement,  3  Sandf.  394,  -      906 

V.  Fish,  3G  Oh.  St.  498,    -      855 

V.  Heyer,  3  Sandf.  293,     -      338 

V.  Heyer,  4  Sand.  Ch.  485,      931 

V.  Heyer,  35  N.  Y.  326,     -      900 

V.  Knox,  41  Mich.  529,     -      534 

Hayraan,  Ex  parte,  8  Ch.  D.  1 1,     105, 

155,  840 
Hayner  v.  Crow,  79  Mo.  293,  -  364 
Haynes  v.  Carter,  13  Heisk.  7,     612, 

616,  617 

V.  Sechrest,  13  Iowa,  455,     292, 

416,  417,  430 
Hay's  Appeal,  91  Pa.  St.  205,  -  284, 
286,  794,  797,  1171 
Haythorn  v.  Lawson,  3  C.  & 

P.  196, 1031 

Hayward  v.  French,  12  Gray, 

453,  -  -  -  848,  353,  1170 
Haywood  v.  Harmon,  17  111. 

477,  -  -  -  336,  389,  1074 
Hazard  v.   Caswell,  93   N.  Y. 

259  (rev.  14  J.  &  Sp.  559),     -     198, 

663,  675 
V.  Hazard,  1  Story,  C.  C. 

371, 43,  56 

Hazlehurst  v.  Pope,  2  Stew.  & 

For.  259,  -  -  -  882,  884 
Head  v.  Goodwin,  87  Me.  181,      471 

V.  Horn,  18  Cal.  211,        -      567 

Headley    v.   Shelton,   51  Ind. 

388, 629 

Health  v.  Percival,  1  P.  Wms. 

682;  IStra.  403,  -  -  -  619 
Heap  V.  Dobson,  15  C.  B.  N.  S. 

460, 80 

Heartt  v.  Corning,  3  Paige,  566,  978, 

979 

V.  Walsh,  75  111.  200,        -     383, 

682,  709,  715,  726 
Heath  v.  Goslin,  80  Mo.  310  (50 

Am.  Eep.  505),       ...        75 

V.  Sansom,  2  B.  &  Ad.  172,     362, 

570,  577,  585,  597,  608,  694 

V.  Waters,  40  Mich.   457,     309, 

738,  743,  770,  775,  789 


Heathcot  v.  Ravenscroft,  6  N. 

J.  Eq.  113,  -  -  -  995,  998 
Heaton,  Ex  parte.  Buck,  386,  -  481 
Heberton  v.  Jepherson,  10  Pa. 

St.  124, 695 

Heckert  v.  Fegely,  6  W.  &  S. 

139, 80 

Heckman  v.  Messinger,  49  Pa. 

St.  465, 825 

Hedden  v.  Van  Ness,  2  N.  J.  L. 

84, 749 

Hedge  &  Horn's  Appeal,  63  Pa. 

St.  273,  ....  72,  74,  83 
Hedges  v.  Armistead,  60  Tex. 

276, 1086 

Hedley  v.  Bainbridge,  3  Q.  B. 

316,  ....  329,  343 
Hedrick  v.  Osborne,  99   Ind. 

143, 1121 

Heeuan  v.  Nash,  8  Minn.  407,     199, 

441 
Hefferman  v.  Brenham,  1  La. 

Ann.  146,  -  .  -  1059,  1062 
Heffron  v.  Hanaford,  40  Mich. 

305,  .      333,  349,  3(32,  369,  1151 

Heflebower  v.  Buck,  64  Md.  15,     993, 

995,  999 
Hefner  v.  Palmer,  67  111.  161,       47, 

91,  94 
Hegeman  v.  Hegeman,  8  Daly, 

1, 670 


Heighe  v.  Littig,  63  Md.  301, 


55 


Heilbut  V.  NeviU,  L.  R.  4  C.  P. 
354,  -  750,  1044,  1046,  1048 

Heimstreet  v.  Howland,  5 
Den.  68,  ...  45,  59 

Heineman  v.  Hart,  55  Mich. 
64, 566 

Heintz  v.  Cahn,  29  III.  808,      -    1072 

Heirn  v.  McCaughan,  33  Miss. 
17,  -        -        -     ■  -        -        -      462 

Heise  v.  Barth,  40  Md.  259,     -       33 

Hellman  v.  Reis,  1  Cint.  Su- 
perior Ct.  Rep.  30  (affd.  in 
25  Oh.  St.  180),       -        .        -      761 

Hells  V.  Coe,  4  McCord,  L. 
136, 383 


xciu 


HEL.J 


TABLE  OF  CASES. 


[Hew. 


Helme  v.  Smith,  7  Bing.  709,       70, 

868.  875 
Helmore  v.  Smith,  35  Ch.  D. 

436,  .-  311,581,584,657,1103 
Helbby  v.  Mears,   5  B.    &  C. 

504, 508 

Henderson      v.      Barbee,      2 

Blatchf.  26,  -  -  -  416,  419 
V.  Carveth,  16  Up.   Can. 

Q.  B.  324,  -  -  -  349,  362 
V.   Haddon,   12  Rich.   (S. 

Ca.)  Eq.  393,  -  -  338,  566,  1109 
V.  Hudson,  1  Munf.  (Va.) 

510,  -----      303 

V.  Nicholas,  07  Cal.  152,  -      404 

V.  Stetter,  31  Kan.  56,      -    1029 

V.  Wadsworth,  115  U.  S. 

2G4, 507 

Hendrick  v.  Gunn,  35  Ga.  234,  57 
Hendrie  v.  Berkowitz,  37  Cal. 

113,  -  -  349,  358,  362,  367 
Hendry  v.  Turner,  32  CIi.   D. 

855,  -        .        .        .       610,  618 

Henley  v.  Soper,  8  B.  «&  C.  16; 

2  Man.  &  Ry.  166.  -        -      800 

Heun  V.  Walsh,  2  Edw.  (N.  Y.) 

Ch.  129, 594 

Hennegin  v.  Wilcoxon,  13  La. 

Ann.  283,  -  -  -  .  851 
V.  Wilcoxon,  13  La.  Ann. 

576, 852 

Hennessy  v.  Westei'n  Bank,  6 

Watts  &  S.  300  (40  Am.  Dec. 

560),  -  •  -  -  -  338,  418 
Henning  v.  Raymond,  35  Minn. 

229, 1008 

Henry  v.   Anderson,   77   Ind. 

361,         -       -        173,  184, 288,  375 

V.  Bassett,  75  Mo.  89,     181,  589, 

770,  780 

V.  Jackson,  37  Vt.  431,     76,  211, 

760,  907 
V.  Mahone,  23  Mo.  App. 

83, 708 

V.  Willard,  73  N.  Ca.  35,     1151 

Henry  County  v.  Gates,  26  Mo. 

315,  -        -        -       414,  418,  421 


Henshaw  v.  Root,  60  Ind.  220,    1074, 

1145 
Henslee  v.  Cannefex,  49  Mo. 

295, 831 

Hepburn,  In  re,  14  Q.  B.  D. 

3U4, 843 

Heran  v.  Hall,  1  B.  Mon.  159 

(35  Am.  Dec.  178),  -        43,  819 

Herbert   v.    Hanrick,   16  Ala. 

581,  .        .        -        -       292,  417 

V.  Hanrich,  16  Ala.  289,  -      416 

V.  Odlin,  40  N.  H.  267,     391,  392 

Hercy  v.  Birch,  9  Ves.  Jr.  357,  1011 
Herd  v.  Delp,  1  Heisk.  530,  -  731 
Herfoot  v.  Cramer,  7  Colorado, 

483, 057 

Herkimer,    The,    Stew.   Adm. 

23, 2 

Hermanos  v.   Duvigneaud,  10 

La.  Ann.  114,  -  -61,69,343 
Heroy  v.  Van  Pelt,  4  Bosw.  60,  520 
Herrick,   Re,   13   Bankr.    Reg. 

312,  .        -        -       205,  439,  535 

V.Ames,  8  Bosw.  115,       -      790 

Herriott  v.    Kersey,    G9  Iowa, 

111, 901 

Hershfield  v.  Claflin,  25  Kan. 

166  (37  Am.  Rep.  237),  -  584,  1105 
Hersoni  v.  Henderson,  3  Fos- 
ter (23  N.  H.),  498,  265,  439,  445 
Herty  v.  Clark,  46  Ga.  C49,  -  959 
Herzog  v.  Sawyer,  61  Md.  344,      416, 

421 
Hesham,  Ex  parte,  1  Rose,  146,  837 
Heshion  v.  Julian,  83  Ind.  57(3,  43 
Hesketh  v.  Blanchard,  4  East, 

144, 16 

Hess  V.  Final,  33  Mich.  515,    850,  878 

V.  Werts,  4  S.  &  R.  361,     73,  458 

Hester  v.  Lumpkin,  4  Ala.  509,     347, 

509 
Heward  v.  Slagle,  52  111.  336,  742 
Hewes  v.  Bayley,  20  Pick.  96,     1039 

V.  Parkman,  20  Pick.  90,       428, 

430 
Hewitt  V.  Kuhl,  25  N.  J.  Eq. 

24, 850 


xciv 


Hew.J 


TABLE  OF  CASES. 


[HiN. 


Hewitt  V.  Rankin,  41  Iowa,  35,      291, 

298 
v.  Sturdevant,  4  B.  Mon. 

4.j3,  -        -         70,  290,  401,  822 

Heydon    v,    Heydon,    1    Salk. 

392, 1100 

Heye  v.  Bolles,  2  Daly,  231 ;  33 

How.  Pr.  266,  -  -  562,  566 
Heyhoe  v.  Binge,  9  C.  B.  431,  2,  16 
Heyne  v.  Middlemore,   1  Rep. 

in  Ch.  138,  -  -  -  739,  923 
Hiatt    V.    Gilmer,  6    Ired.    L. 

450, 710 

Hibbard  v.  Holloway,  13  111. 

App.  101,  ....  10^6 
Hibbert  v.    Ilibbert,    cited   in 

Collyer  on  Partnership,  §  203,  1013 
Kibbler  v.  De  Forest,  6  Ala. 

92, 349,  362 

Hickman  v.  Cox,  3  C.  B.  N.  S. 

523, 19 

V.  Kunkle,  27  Mo.  401,     329,  343, 

344,  361,  374 
V.    Reineking,    6   Blackf. 

387, 347 

Hicks  V.  Cram,  17  Vt.  449,       -      109, 

1052.  11.53,  1155 

V.  Mauess,  19  Ark.  701,     -     1051 

V,  Russell,  72   111.  230,    341,  615, 

626 

V.  Wyatt,  23  Ark.  55,        -      503 

Higdon   V.  Thomas,  1   Har.   & 

G.  (Md.)  139,  -  -  -  -  1020 
Higgins,  E.x  parte,  3  De  G.  & 

J.  33, 535 

V.  Armstrong  (Colorado), 

10  Pac,  Rep.  232,  -  -  329,  374 
V.  Bailey,  7  Robt.  (N.  Y.) 

613,         -        -        -        -        -     1002 

V.  Rector,  47  Tex.  361,    749,  826, 

828,  832 
Higginson  v.   Air,    1   Desaus. 
'  427,         -        -        -      994,  999,  1003 
High  V.   Lack,  Phil.   (N.   Ca.) 

Eq.  175,  -        276,  408,  991,  9U6 

riill.  Ex  parte,  2  B.   &P.  191, 

note,        -        -        -        -       832,  833 

a 


Hill  V.  Beach,  12  N.  J.  Eq.  31.  6,  820, 
821,  813,  845,  917,  1103 
V.  Bellhouse,  10  Up.  Can. 

C.  P.  122,        ...  23,  88 

V.  Hill,  55  L.  T.  N.  S.  709,       677 

V.  Matta,  12  La.  Ann.  179,       770 

V.  McPherson,  15  Mo.  204,     882, 

884 

V.  Marsh,  46  Ind.  218,       -     1027 

V.  Palmer,  56  Wis.  123  (43 

Am.  Rep.  703),        -       870,  872,  889 

V.  Trainer,  49  Wis.  537,    -      534 

V.  Treat,  67  Me.  501,  -      733 

V.  Voorheis,  22  Pa.  St.  68,      439 

V.  Wiggin,  31  N.  H.   292,      186, 

1102,  1105,  1106 
Hilliard  v.  EifTe,  L.  R.  7  H.  L. 

39, 926 

Hilligsberg  v.    Burthe,    6  La. 

Ann.  170,  -  -  -  786,  787 
Hilliker  v.   Francisco,  65  Mo. 

598,  -  -  410,  452,  567,  1019 
V.  Loop,  5  Vt.  116  (26  Am. 

Dec.  286),        -  1019,  1020,  1022 

Hillman  v.  Moore,  3  Tenn.  Ch. 

454,  ...        -       105,  155 

Hillock  V.  Traders'  Ins.  Co.  54 

Mich.  531,  -  -  -  -  409 
Hills  V.  Bailey,  27  Vt.  548,      779,  854 

V.  McRae,  9  Hare,  297,     -      748- 

V.  Nash,  1  Oh.  594,     -        -      930 

V.  Ross,  3  Dall.  331,  -      380- 

Hilton  V.  McDowell,  87  N.  Ca. 

364,  -  -  -  331,  332,  1151^ 
V.  Vanderbilt,  82  N.  Y. 

591, 683 

Himelright  v.  Johnson,  40  Oh. 

St.  40,  -  -  -  -  347,  363 
Hinds,  Ex  parte,  3  De  G.  &  Sm. 

613,  -        -        -       201,  287,  838 

Hine  v.  Beddome,  8  Up.  Can. 

C.  P.  381,  507,  510,  511,  512,  516 
Hines  v.  Driver,  71  Ind.  125,    -       657 

V.  Kimball,  47  Ga.  587,     -    1123 

Hinkle  v.  Reid.  43  Ind.  390,     -      635 


Hiiiklcy  V.    Gilligan,    84    Me. 

101, 701 

xcv 


HiN.] 


TABLE  OF  CASES. 


[Hoo 


Hinkley  v.  St,  Anthony's  Falls 
Water  Power  Co.  9  Minn.  55,     1137 

Hinnian  v.  Littell,  23  Mich. 
484, 99 

Hinton  v.  Law,  10  Mo.  701,      -        70 

V.  Odenheimer,  4  Jones' 

Eq.  400,  ....  531 
Hirley  v.  Walton,  63  111.  260,  -  59 
Hirsch  v.  Adler,  21  Ark.  838,  -  933 
V.  Im  Thurn,  4  C.  B.  N.  S. 

509, 233 

Ilirth  V.  Pfeifle,  42  Mich.  31,  -  1125 
Iliscock  V.   Phelps,  49  N.   Y. 

97  (below,  2  Laos.  106),  184,  185, 
187,  290.  291,  295,  822 
Hitchcock  V.   St.  John,  Hoff. 

Ch.  511,  .        ...      338 

Hitchens  v.  Congreve,  1  R.  & 

M.  150, 912 

Hitchicgs   V.    Ellis,    12  Gray, 

449, 17,39 

Hite  V.  Hite.  1  B.  Mon.  177,  -  772 
773,  778,  788,  963 
Hittinger     v.     Westford,     135 

Mass.  258,  -  -  -  -  177 
nixon  V.  Pixley,  15  Nev.  475,  -     621, 

622,  624,  628 
Hoadley  v.  County  Comm'rs, 

105  Mass.  519,  -        -        -       176 

Hoard  v.  Clum,  31  Minn.  186,     580, 

739,  933 
Hoare  v.  Dawes,  1  Doug.  371,  65,  71 
V.  Oriental  Bank  Corpora- 
tion, L.  R.  2  App.  Cas.  589,  -  829 
Hobart  v,    Ballard,   31    Iowa, 

521, 83,  1002 

V.  Howard,  9  Mass.  304,  -      629 

Hobbs  V.  McLean,  117   U.    S. 

567, Ill,  822 

V.    Memphis  Ins.    Co.    1 

Sneed  (Tenii.),  444,        -        -      273 

V.  Wilson,  1  W.  Va.  50,  -     510, 

565,  634,  635 
Hoboken  Bank  v.  Beckman,  36 

N.  J.  Eq.  83  (affd.  37  id.  331),  331 
Hobson  V.  Porter,  2  Colorado, 

28, 416 


Hockless  V.  Mitchell,  4  Esp.  86,  415 
Hockwell    V.    Eustman,    Cro. 

Jac.  415,  -  -  -  -  923 
Hodge  V.  Twitchell,  33  Minn. 

389, 307 

Hodgen  v.  Kief,  63  111.  146,  -  612 
Hodges  V.  Black,  8  Mo.  App. 

389  (affd.    without  opinion, 

76  Mo.  537),     -        -        -        -      881 

V.  Dawes,  6  Ala.  215,        -        43 

V.  Iloleraan,  1  Dana,  50,  -     184, 

820,  8-2 

V.  Kimball,  49  Iowa,  577, 

10-9 
V.  Ninth  Nat.  Bk.  54  Md. 

406,  -  -  317,  321,  350,  430 
V.  Parker,  17  Vt.  242  (44 

Am.  Dec.  331),  -  -  -  785 
Hodgkins  v.    Merritt,    53   Me. 

208, 726 

Hodgkinson,  Ex  parte,  19  Ves. 

291,  -        -        -        155,382,831 

Hodgman  v.  Smith,  13  Barb. 

303, 43 

Hodgson,  Ex  parte,  2  Brown's 

Ch.  5,      -        -        -        -       835,  834 

,  III  re,  31  Ch.  D.  177,       539,  748 

V.  Baldwin,  05  111.  533,       73,  76, 

458 
Hoeflinger  v.  Wells,    47  Wis. 

628,  -        -        -        440,  533,  524 

Huffman  v.  ^tna  F.  Ins.  Co. 

33   N.  y.  4U5  (affg.    1  Robt. 

501;  19  Abb.  Pr.  235),   -       272,  273 

V.  Porter,   2  Brock.  158,   -      296 

Hogan  V.  Calvert,  21  Ala.  194,      036, 

637,  879 

V.  Reynolds,  8  Ala.  59,    -       317, 

372,  382,  44vi 
V.  Reynolds,  21  Ala.  56  (56 

Am.  Due.  336),  -  -  -  531 
Hogarth  v.  Latham,  3  Q.  B.  D. 

643,  -----      341 

Hogeboom  v.  Gibbs,  88  Pa.  St. 

235, 1168 

Hogendobler  v.  Lyon,  12  Kan. 


276, 


685,  689,  1055 


XCVl 


Hoa.] 


TABLE  OF  CASES. 


[HOL. 


Hogg  V.  Ashe,  1  Hay  w.  (N.  Ca.) 
471 ;  S.  C.  Cam.  &  N.  3,       718,  723, 

724,  731 

V.  Orgill,  34  Pa.  St.  344,  -     361, 

700 

V.  Skeen,  18  C.  B.  N.  S. 

426, 362 

Hogle  V.  Lowe,  12  Nev.  286,    -     2S1, 

286,  291 
Hogarth  V.  Wherley,  L.  R.  10 

C.  P.  630,  -  ...  382 
Hoile  V.  York,  27  Wis.  209,  -  87 
Holbrook,  Re,  2  Low.  259,     346,  453. 

842 

V,  Chamberlin,  116  Mass. 

155,  -        -        -        292.  416,  417 

V.  Lackey,  13  Met.  132  (46 

Am.  Dec.  726).        -       718,  722,  723 

V.  Oberne,  56  Iowa,  324,  -        43 

V.  St.  Paul  F.   &  M.   Ins. 

Co.  25  Minn.  229,  -        -        -      5,  6 

389 


V.  Wight,  24  Wend.  169, 


Holdane     v.     Butterworth,    5 

Bosw.  1,  -        -        608,  622,  623 

Holdeman  v.  Knight,  Dallam 

(Tex.),  556,  -  -  -  -  417 
Holden   v.    Bloxura,   35  Miss. 

381,  ....       200,  435 

V.  French,  68  Me.  241,      -        59 

V.  McFaul,  21  Mo.  215,    -      508 

V.  McMakin,  1  Pars.  Sel. 

Cas.  (Pa.)  270,  -  -  658,  1001 
V.  Peace,  4  Ired.  (N.  Ca.) 

Eq.  223,  -        -       783,  787,  793 


Holderness  v.  Shackela,  8  B.  & 

C.  162,  -  -  -  -  753,  845 
Holdrege   v.    Gwynne,    18  N. 

J.  Eq.  26,  -  -  -  545,  790 
Holdridge  v.  Farmers'  &  Mech. 

B'k,  16  Mich.  66,  -  -  -  387 
Holdsworth,  Ex  parte,  1  M.  D. 

&  D.  475,  -  ...  323 
Hoi i field  V.  White,  52  Ga.  567,  61 
Holkirk   v.    Holkirk,  4  Madd. 

50, 383,  1027 

IloUaday  v.  Elliott,  3  Oregon, 

340,         ....       591,  936 

xcvii 


Holladay  v.  Elliott,  8  Oregon, 

84,  -        -        -        -       572,  593,  796 
Holland  v.  Drake,  29  Oh.   St. 
441,  ...        -       338,  339 

V.  Fuller,  13  Ind.  195,      184,  731 

V.  King,  6  C.  B.  727,         -      249 

V.  Long,  57  Ga.  36,    -       96,  156, 

201,  444,  G08 

V.  Teed,  7  Hare,  50,  -      649 

HoUembaek  v.  More,  44  N.  Y. 

Superior  Ct.  107,  -  -  -  482 
Hoi  I  is  V.  Staley,  3  Baxter,  167,  551 
Hollister.  Re,  3  Fed.  Rep.  452,       825 

V.  Barkley,  11  N.  H.  501,      764 

Holloway  v.  Brinkley,  42  Ga. 

236, 59 

V.  Turner,  61  Md.  217,     335,  692, 

785,  786,  935,  949 
Hoi  man   v,  Langtree,  40  Ind. 

349, 535 

V.  Nance,  84  Mo.  674,     733,  738, 

858 
Holme    V.    Allan,   Tayl.    (Up. 

Can.)  348,  -  -  -  -  377 
V.  Hammond,  L.  R.  7  Ex. 

218,  -        -        -    18.  52,  154,  747 

Holmes'  Appeal,  79  Pa.  St.  279,  743 
Holmes  v.  Bigelow,  3  Desaus. 

(S.  Ca.)  497,    ...        -      761 

V.  Brooks,  68  Me.  416,       -     733, 

1170 
V.   Burton,  9  Vt.  252  (31 

Am.  Dec.  621),  -  439,  445,  446 
V.   Caldwell,    8  Rich.    (S. 

Ca.)  L.  247,  ...  -  507 
V.  D'Camp,  1  Johns.  34  (3 

Am.  Dec.  293),  -  -  719,  722 
V.  Hawes,  8  Ired.  (N.  Ca.) 

Eq.  21, 5G1 

V.  Higgins,  1  B.  &  C.  74,       8!). 

770.  8o4 

V.  Hubbard,  60  N.  Y.  183,     644. 

961 
V.  Kortlander  (Mich.),  31 

N.  W.  Rep.  532,     -        -        -      429 

V.  McCray,   51     Ind.  358 

(19  Am.  Rep.  735),         -        -      302 


HOL.] 


TABLE  OF  CASES. 


[Bos. 


Holmes  v.  McDowell,  15  Hun, 

585  (affd.   without   opinion, 

76  N.  Y.  596),         -        -     935,  1006 

V.  McGee,  27  Mo.  597,       -      297 

V.  Meuze,  4  A.  &  E.  127,     1109 

V.  Old  Colony  R.  R.  5  Gray, 

58,  .        -        -        .    43,  45,  46 

V.  Porter,  39  Me.  157,     231,  1139 

V.  Self,    79  Ky.  297,        -      285 

V.  Shands.  27  Miss.  40,      -      707 

V.  United    F.    Ins.   Co.  2 

Johns.  Cas.  329,  -  -  -  71 
V.  Winchester,  138  Mass. 

542, 1131 

Holt's  Appeal,  98  Pa.  St.  257,  -  289 
Holt  V.  Kernodle,   1  Ired.    L. 

199, 35 

V.  Simmons,  16  Mo.  App. 

97,  319,  337,  323,  341,  364,  403, 

408,  427,  607.  611,  631,  970 
Holtgreve  v.  Wintker,  85  111. 

470.  ....       621,  634 

Holton  V.  Holton.  40  N.  H.  77,     569, 

835,  847 

V.  McPike,  27  Kan.  286,    391,408 

Holyoke  v.  Mayo.  50  Me.  385,     854, 

886,  888,  957 
Homer  v.  Homer,  107  Mass.  82,       284 

V.  Wood,  11  Cush.  63,       -     1037 

Homfray  v.   Fothergill,  L.  R. 

1  Eq.  567,  -  ...  243 
H  jney.  Ex  parte,  L.  R.  7  Ch. 

App.  178,  ....  841 
Honore  v.  Colmesnil,  1  J.  J. 

Mar.  506,        181,  182,  761,  764,  771. 

963,  985,  1003 

V.  Colmesnil,  7  Dana,  199,      788, 

976 
Hood  V.  Aston,  1  Russ.  412,     -      989 

V.  Riley,  15  N.  J.  L.  127,     411, 

434 

V.  Spencer,  4  McLean,  168,     504, 

636,  637,  879 
Hook  V.  Stone,  34  Mo.  329,  -  338 
Hook  ham  v.   Pottage,  L.  R.  8 

Ch.  91;  27   L.  T.    N.   S.   595; 

21  W.  R.  47,    -       663,  664,  066,  669 


Hooley  v.  Gieve,  9  Daly,  104; 

9   Abb.  New  Cas.  271  (affd. 

without  opinion,  73    N.    Y. 

599),  -  -  -  .  739,  741 
Hooper  v.  Keay,  1  Q.  B.  D.  178,     489, 

497 

V.  Lusby,  4  Camp.  66,       -      409 

Hoopes  V.  McCan,  19  La.  Ann. 

201,  -        -        523,  537,  538, 534 

Hopkins,  -Ex   parte,    104  Ind. 

157, 1131 

V.  Banks,  7  Cow,  650,       -      700 

V.  Boyd,  11  Md.  107,       349,  353, 

357 

V.  Carr,  31  Ind.  260,        533,  524, 

647 

V.  Forsyth,  14  Pa.  St.  34,        70 

V.  Hull,  17  Md.  72,    -        -    1052 

V.    Johnson,    2   La.  Ann. 

842, 504 

V.  Watt,  13  111.  298,  -      309 

Hopkinson  v.  Smith,    1    Bing. 

13;  7  Moo.  242,  -  -  110,  437 
Hopley  V.  Wakefield,  54  Iowa, 

711, 954 

Hopper  V.  Lucas,  86  Ind.  43,      377, 

379 
Horback   v.    Huey,    4    Watts, 

455,  -        -        -      435,  544,  1024 

Horn  V.  Newton  City  B'k,  33 

Kan.  518,  -  -  339,  341,  343 
Horneffer  v.  Duress,  13   Wis. 

[603], 137 

Horsey  v.  Heath,  5  Oh.  353,     12,  442, 

524,  747,  750 
Horton's  Appeal,  13  Pa.  St.  67,     276, 

570,  577,  585 
Horton  v.  Child,  4  Dev.  L.  460,     420, 

422 
Horton   Mfg.    Co.    v.     Horton 

Mfg.  Co.  18  Fed.  Rep.  816,  671,  672 
Hosack  V.  Rogers,  8  Paige,  229,  385 
Hoskins  v.  Johnson,    24    Ga. 

625, 1125 

Iloskisson  v.  Eliot,  62  Pa.  St. 

393,  315,  319.  323,  338,  339,  341. 

370,  377,  430,  433,  427,  523,  724,  749 


XCVUl 


Hos.] 


TABLE  OF  CASES. 


[IIox. 


Hosmer  v.  Burke.  26  Iowa,  353,       172 

Hotchin  v.  Kent,  8  Mich.  526,     317, 

323,  325,  426,  429 

V.  Secor,  8  Midi.  494,     523,  524 

Hotclikiss  V.  English,  4   Hun, 

369;  6  N.    Y.    Supreme   Ct. 

658,         ....        43,  345 

V.  La(kl,  36  Vt.  593,  -      448,  647 

V.  Ladd,  43  Vt.  345,  -      448 

Hot  Springs  R.  R.    v,  Trippe, 

42  Ark.  465  (48  Am.  Rep.  65),       66, 

134 
Hottenstein  v.  Conrad,  9  Kan. 

435,  ....  993,1002 
Hough    V.    Perkins,    2     How. 

(Miss.)  724,  -  -  -  636,  637 
Houlton's  Case.   See  Devaynes 

V.  Noble. 
Hourquebie  v.  Girard,  2  Wash. 

C.  C.  212,  -  -  -  799.  800 
House   V.   Thompson,  3  Head 

(Tenn.),  512,  -  -  -  847,  848 
riouseal's  Appeal,  45  Pa.  St. 

484,  ....       836,  837 

Houser  v.  Irvine,  3  Watts  &  S. 

345  (38  Am.  Dec.  768),    695,  700,  705 

V.  Riley,  4.")  Ga.  126,         482,  483 

Houston    V.    Brown,  23   Ark. 

333,  -        -        -      849,  851,  1081 

V.  Stanton,  11  Ala.  412,    -        13 

Hovey  v.  Cassels,  30  Up.  Can. 

C.  P.  230,  ....  441 
How  V.  Kane,    2  Pin.   (Wis.) 

531;  2  Chand.  223  (54  Am. 

Dec.  152).  -  -  153.  155,  535 
Howard,  In  re,  4  Bankr.  Reg. 

571, 841 

V.  France,  43  N.  Y.  593,    -      868 

V.    Henriques,    3    Sandf. 

725, 674 

V.  Jones,  50  Ala.  67  (now 

overruled),  ....  1131 
V.  McLaughlin,  98  Pa.  St. 

440, 1103 

V.  Patrick,  38  Mich.  795,       850, 

981,  1136 
V  Patrick,  43  Mich.  121,       1137 


Howard  v.  Priest,  5  Met.  582,  281, 
290,  293,  294,  823 
V.  Shaw,  91  Ind.   384;  46 

Am.  Rep.  607,        -        -        -      136 

V.  Stephens,  52  Miss.  239,      136, 

137 
Howden,  Ex  parte,  2  M.  D.  & 

D.  574,  -  -  -  70,  401 
Howe  V.  Howe,  99  Mass.  71,  257,  868 
V.  Lawrence,  9  Cush.  553 

(57  Am.  Dec.  68),  551,  560,  833 
V.  Savery,   49   Barb.  403; 

51  N.  Y.  631,  -  -  -  1022 
V.  Searing,   6  Bosw.    354; 


10  Abb.  Pr.  264,     657,  658,  664,  671 

V.  Shaw,  56  Me.  291,         -      471 

V.  Snow,  3  Allen,  111,      -1079. 

1084 

V.  Thayer,  17  Pick.  91,      -     623, 

627,  1109 
Howell   V.    Adams,    68  N.  Y. 
314,  -       152,  445,  609,  613,  1154 

V.  Brodie,  6  Bing.   N.   C. 

44, 88 

V.  Harvey,  5  Ark.  270  (39 

Am.  Dec.  376),      571,  577.  578,  592. 
593,  595,  931,  932,  988 

V.  Howell,  15  Wis.  [55J  60,      545. 

790 

V.  McFarland,  2  Ont.  App. 

31, 416 

V.  Reynolds,   12  Ala.   128,     1024 

V.  Sewing  Mach.  Co.  13 

Neb.   177,      347,  363,  446,  507,  509, 

510,  511 
V.  Teel,  29  N.  J.  Eq.  490,       847 


Howland   v.    Davis,  40   Mich. 

545, 389 

Howry  v.  Eppinger,  34  Mich. 

29, 901 

Howze  V.    Patterson,  53  Ala. 

205  (25  Am.  Rep.  607),       328,  341. 

348,  370 
Hoxie  V.  Carr,  1  Sumner,  C.  C. 

173,  281,  291,  295,  297,  824,  932 
V.  Chaney,  143  Mass.  592,     663. 


664,  669 


xcix 


noY.] 


TABLE  OF  CASES. 


[Hun. 


Hoyt  V.  Bonnett,  50  N.  Y.  538 

(rev.  58  Barb.  529),         -        -      750 
V.  Hoyc,  69  Iowa,  174,      -    1131 

V.  Murphy,    18  Ala.  316,      504. 

1081,  1083,  1169 

V.  Murphy,  23  Ala.  456,  1167, 

1168 

V.  Robinson,  10  Gray,  371, 

372, 1125 

V.  Sprague,  103  U.  S.  613,     556, 

739,  743,  952 

V.  Sprague,  12  Chic.  Leg. 

News,  25  (affd.  103  U.  S.  613),       743 

Hubbard  v.  Curtis,  8  Iowa.  1,     825, 

928,  1109,  nil,  1112 

V.  Galusha,  23  Wis.  398,       393 

V.  Guild,  1  Duer,  662,     241,  583, 

754,  995,  1003 

V.  Matthews,  54  N.  Y.  43 

(13  Am.  Rep.  562),  86,  349,  398, 

707 

V.  Miller,  27  Mich.  15,       -      676 

V.  Pace,  34  Ark.  80,  -      761 

V.  Winsor,  15  Mich.   146,       176 

Hubbardston   Lumber  Co.   v. 

Bates,  31  Mich.  158.       -        -      390 

V.  Covert,  35  Mich.  254,      179, 

1086,  1124 
Hubbell  V.  Perin,  3  Oh.  287,     -      747 

V.  Skiles,  16  Ind.  138,      -   1067, 

1070 

V.  Woolf,  15  Ind.  204,       -        87 

Hubble  V.  Perrin,  3  Oh.  287,  -     847, 

848 
Huckabee  v.  Nelson,  54  Ala. 

12,  -        -        .        -  64,  65 

Hudgins  v.    Lane,    11  Bankr. 

Reg.  462,  -  -  -  753,  754 
Hudson    V.    Barrett,    1    Pars. 

(Pa.)  Sel.  Cas.  414,         -        -      910 

V.  Hunt,  5  N.  H.  538,        -    1125 

V.    McKenzie,    1    E.     D. 

Smith.  358,  -  -  -  -  401 
V.  Osborne,  39  L.  J.  Ch. 

79,  ...  6G4,  667,  669 
V.  Robinson,   4   M.    &  S. 

475, 11G9 


Hudson  V.  Simon,  6  Cal.  453,  -    1147 
Huff  V.  Cameron,  1  Up.  Can. 

Prac.  Rep.  255,       -        -        -      377 
V.  Lutz,  87  Ind.  471,        735,  825 


Huffman  v.  Copeland,  86  Ind. 

224,  ....       139,  140 

Hughes,   Re,    16   Bankr.   Reg. 

464,  ...        - 

V.  Devlin,  23  Cal.  501, 

V.  Ellison.  5  Mo.  463, 

V.  Trahern,  64  111.  148, 

V.  Walker,  4  Blackf.  50, 


Huguley  v.  Morris,  65  Ga.  666, 


1131 
976 
338 
723 
1067 
376, 
408 


Huiskamp   v.    Molina  Wagon 

Co.   121  U.  S.  310  (reversing 

S.  C.  as  Moline  Wagon  Co.  v. 

Rummell,   2   McCrary,    807; 

12  Fed.  Rep.  658;  14  id.  155),  547, 
559,  560,  561,  565 
Hulett  V.  Fairbanks,  40  Oh.  St'. 

233,  ...         82,  304.  311 

Hull  V.  Garner,  31  Miss.  145,      377, 

380 
Hulse's    Estate,     11     Weekly 

Notes  (Pa.),  499,  -  -  548,829 
Human  v.  Cuniffe,  33  Mo.  316,  418 
Hume  v.  Bolland,  Ry.  &  Moody, 

370;  ICr.  &  M.   130;  2  Tyr. 

575. 474 

v.  Watt.  5  Kan.  34,  -      398 

Humes  v.  O'Bryan,  74  Ala.  64,     101, 

317,  322,  1143,  1151,  1153,  1155,  1156, 

1157 
Humplireys    v.    Matthews,   11 

111.  471,  -        -        -        -      894 

v.  Mooney,  5  Col.  282,      -  4 

Humpliries  v.  Chastaiu,  5  Ga. 

166  (48  Am.  Dec.  247),  690,  694 

V.  McCraw,  5  Ark.  01,     -        64 

Hunnicutt  v.  Summey,  63  Ga. 

580,  ...        -    1131,  1132 

Hunt  V.    Benson,    2   Humph. 

(Tenii.)  459,    -        -        -       281.  544 

V.  Chapiu,  6  Lans.  139,     -      329. 

343,  371 
V.  Drane,  32  Miss.  243,     -      723 


Hun.] 


TABLE  OF  CASES. 


[Huw. 


Hunt  V.  Erikson,  57  Mich.  330,        38 

V.  Gookin,  6  Vt.  4G3,         -      736 

V.  Gorden,  52  Miss.  lU,    899,  937 

V.  Hall,  8  Ind.  215,    -       370,  607 

V.  Hard  wick,  08  Ga.  100,       961 

V.  Jucks,  1  Hayw.  (N.Ca.) 

173  (1   Am.  Dec.  555),  -     1155 

V.    Morris,  44  Miss.  314,      278, 

541,  858,  892 

V.  Pfeiffer,  108  Ind.  197,      113, 

128 
V.  Reilly,  50  Tex.  99.        -      889 


V.  Rogers,  7  Allen,  469, 


634, 


635,  647 
•  V.  Royal  Exchange  Assur. . 


Co.  5  M.  &  S.  47,    - 

V.  Roylance,  11  Cush.  117, 

V.  Semouin,  79  Ky.  270,  - 

V.  Smith,  3  Rich.  Eq.  465, 

V.  Stuart,  53  Md.  225, 

V.  Tibbetts,  70  Me.  221,     - 

Hunter,  Ex  parte,  1  Atk.  228,  - 

V.  Aldrich,  52  Iowa,  442, 

V.  Belcher,  3  De  G.,  J.  & 

Sm.  194,  .... 
V.  Hempstead,  1  Mo.  [07] 


409 
1143 

195 
184, 

187 

964 

663 
825, 

836 
978, 

979 

954 


48  (13  Am.  Dec.  468),     -        -      397 

—  V.  Hubbard,  26  Tex.  537,       150, 

701,  1135 

—  V.  Land,  8H  Pa.  St.  296,  -      873 

—  V.  Martin,  2  Rich.  (S.  Ca.) 
L.  541, 

V.  Martin,  57  Cal.  365,       - 

V.  Parker,  7  M.  &  W.  322, 

—  V.  Smith,  14  Wis.  683,      - 


296 

1068 

418 

296 

V.  Waynick,  67  Iowa,  555,      340, 

404,  405 

V.  Whitehead,  43  Mo.  534,       303 

Huntington  v.  Lyman,  1  D. 
Chip.  (Vt.)  438  (13  Am.  Dec. 
716),        .        -        -        -       349,  363 

V.  Potter,  32  Barb.  300,     681,  683 

Huntley  v.  Huntley,  1 14  U.  S. 
394,         -        .        -        -       208,  209 


Huntoon  v.  Dow,  29  Vt.  215,  -    1045 
Hupp  V.  Hupp,  6  Gratt.  310,    -     532, 

635,  879 
Hurd  V.  Haggerty,  24  111.  171,     331, 
-     448,  356,  1152 
Hurlbert  v.  Dean,  2  Keyes,  97 

(2  Abb.  App.  428),  -        -      566 

Hurlbut  V.  Johnson,  74  111.  G4,     558, 

1109 

V.  Post,  1  Bosw.  28,  -     151,  1053 

Hurst  V.  Hill,  8  Md.  399  (63 
Am.  Dec.  705), 


Hurt  V.  Clarke,  56  Ala.  19;  28 

Am.  Rep.  751,        -        -        - 

V.  Salisbury,  55  Mo.  310,  - 


694 

429 
5 

Huston  V.  Neil,  41  Ind.  504,     -     290, 

927 
Hutcheson  v.    Smith,    5   Irish 

Eq.  117,  -        -        770,  780.  788 

Hutchins  v.  Bank  of  Teun.  8 
Humph.  418,  -        -       613,  616 

V.  Buckner,  3  Mo.  App. 

594,  ....       78,  1137 

V.  Childress,    4  Stew.   & 

Por.  34,  -        -        -        -        -      331 
V.  Gilman,  9  N.  H.  359,  -      317 

V.    Hudson,   8    Humph. 

426,  ....       372,  613 

V.  Sim,  8  Humph.  423,     -      613 

Hutchinson     v.     Dubois,      45 
Mich.  143,       ...        -     1106 

V.  Onderdonk,  6  N.  J.  Eq. 

277  (reversed,  id.  633),  -       767,  771 

V.  Paige,  67  Wis.  203,      -      930 

V.  Smith,  7  Paige,  26,     482,  483, 

726,  733 
Hayes 
-       234,  575 


V.      Whitfield, 


(Irish),  78,      - 
Hvitton  V.  Bullock,  L.  R.  8  Q. 

B.  331  (affd.  in  9  id.  572),      - 

V.  Eyre,  6  Taunt.  289, 

V.  Laws,  55  Iowa,  710, 


80 
385 
923. 
924 
Hutzler  v.  Phillips  (S.   Ca.),  1 

S.  E.  Rep.  502,        -        -       826,  847 
Huwer  v.  Dannenhoffer,  82  N. 
Y.  499,    ....       663,  675 


ci 


HUY.] 


Huyck  V.  Meador,  24  Ark.  191, 
Hyams  v.  Rogers,  24  La.  Ann. 

230, 457 

Hyat   V.    Hare,    Coniberbach, 

383,  -  -  373,  722,  724,  746 
Hyde  v.  Easter,  4  Md.  Ch.  80,  798 
Hydeville    v.    Barnes,    37  Vt. 

588, 899 

Hyer  v.    Burdett,  1   Edw.  Ch. 

325.  ....       924,  925 

Hyman    v.    Stadler,    63   Miss. 

362,  ....  .  537 
Hynes  v.  Stewart,  10  B,  Mon. 

429, 595 

Hyrschf elder    v.    Keyser,    59 

Ala.  338,         -        -        -        -      403 


I. 


Iddings  V.  Bruen,  4  Sandf.  Ch. 

223,  ....       303,  645 

V.  Pierson,  100  Ind.  418,  -     200, 

607 
Ide  V.  Ingraham,  5  Gray,  106,  701 
Ihmsen  v.  Lathrop,  104  Pa.  St. 

365,  ...        -        97,  101 

V.  Negley,  25  Pa.  St.  297,       359 

Inbusch   V.  Farwell,   1   Black, 

566,  ....  1086,  1089 
Indiana  Pottery  Co.  v.  Bates, 

14  Ind.  8,  .  -  -  -  285 
Ingalls,  Re,  5  Boston  Law  Rep. 

401, 825 

Ingersoll  v.  Robinson,  35  Ala. 

292, 1081 

Inglebright    v.  Hammond,  19 

Oh.  337  (53  Am.  Dec.  430),  1155 
Ingraham  v.    Foster,    31  Ala. 

123,  ...         81,  591,  940 

V.  Gildermester,  2  Cal.  88,    1086, 

1093 
Innes  v.  Stephenson,  1  Moo.  & 

Ry.  145, 384 

International  Bank    v,   Jones 

(111.),  9  N.  E.  Rep.  885,  -     1079 

International  Contract  Co.,  Re, 

L.  R.  6  Ch.  525.      -        -        -      420 


TABLE  OF  CASES. 
880 


[Jac. 


Iowa  Seed  Co.  v.  Dorr  (Iowa), 

30  N.  W.  Rep.  866,  -  667,  669 
Irby  V.  Graham,  46  Miss.  425,     454, 

749,  825,  828 

V.  Viniug,  2   McCord  (S. 

Ca.),  L.  379,  -  618,  621,  623,  624 
Irish  V.  Snelson,  16  Ind.  8G5,  .  850 
Irvin  V.  Conklin,  86  Barb.  64,  91 
V.  Nashville,  Ciiat.  &  St. 


L.  R'y  Co.  92  111.  103  (34  Am. 

Rep.  116),  -  -  57,  66,  134 
Irvine  v.  Myers,  4  Minn.  229,  1057 
V.  Young,    1  Sim.  &  Stu. 

333, 955 

Irving,  Re,  17  Bankr.  Reg.  22,       349 
Irwin  V.   Bid  well,   72   Pa.  St. 

244,        16.  23,  45,  47,  48,  49,  88,  188 
V.  Williar,  11    Biss.  57  (re- 
versed in  110  U.  S.  4£3),        -      319- 

V.  Williar,  110  U.  S.  499,     317, 

318.  319,  373 
Isaacs,    Re,    3     Sawy.    SI;    6 

Bankr.  Reg.  93,  -  -  -  503 
Isler    V.     Baker,    6     Humpli. 

(Tenn.)  85,  -  -  527,581,694 
Ives  V.  Miller,  19  Barb.  196,  850,  852 
Ivey  V.  Hammock,  68  Ga.  428,  278 
Ivy  V.  Walker,  58  Miss.  253,    849,  893 

J. 

Jacaud  v.  French,  12  East,  317,      171, 

381 
Jackman  v.  Partridge,  21  Vt. 

558, 543 

Jackson,  Re,  1  B.  &  C.  270,      -      110 

,  Ex  parte,  1  Ves.  Jr.  131,       511 

,  Ex  parte,   2  M.  D.  &  D. 

146  (s.  c.  below  as  Ex  parte 

Whitmore,  5  M.  &  A.    637; 

3  Deac.  365),  -        -        -       512,  516 

V.  Alexander,  8  Tex.  109,     1022 

V.  Bohrman,  59  Wis.  422,     437, 

1019 

V.  Clymer,  43  Pa.  St.  79,  -     1081 

V.   Cornell,   1   Sandf.  Ch. 

848,         ....       566,  569 


ou 


J  AC] 


TABLE  OF  CASES. 


[Jen. 


Jackson  v.  Crapp,  33  Ind.  423,      812. 

813 

V.  Deese,  35  Ga.  84,     593,  974,  975 

V.  De  Forest,  14  How.  Pr. 

81, G60,  1007 

-■ —  V.  Hollo  way,  14  B.  Mon. 
108, 383 

V.  Jackson,   1  Sm.  &  G. 

184, 247 

V.  Johnson,  11  Hun,  509,      781 

V.  Jones,  13  Ala.  121,        -    1167 

V,  King,  8  Leigh,  669,       -       749 

V.  King,  12  Gratt.  499,      -      750 

V.  Lahee,  114  111.  287,       -     1006 

V.  Litchfield,   8  Q.  B.  D. 

474, 1063 

•  V.  Robinson,  3  Mason,  138,       70, 

71,  1081 

-  V.  Salmon,  4  Wend.  327,  -      508 

V.    Sedgwick,    1   Swanst. 

460,         ...        -        86,  212 

V.  Stopherd,  3  Cr.  &  M. 

361, 892 

V.  Todd,  56  Ind.  406  (s.  C. 

as  Todd  v.  Jackson,  75  id.  273),  316 
Jackson    Ins.    Co.  v.  Partee,  9 

Heisk.  296,  -  -  -  824,  825 
Jacobs,  Ex  parte,  10  Ch.  App. 

311,  ...        -     533,  534 

V.  McBee.  2  McMuU.  348,  _       430 

V.  Seward,  L.  R.  5  H.  L. 

464, 274 

Jacoby  v.  Whitmore,  33  W.  R. 

18 ;  49  L.  T.  335,  -  -  -  676 
V.    Whitmore,    33   W.    R. 

18 ;  46  L.  T.  N.  S.  740,  -  -  676 
Jacques  V.  Hulit,  16  N.  J.  L.  38,     858, 

860 
Jacquin   v.    Buisson,  11   How. 

Pr.  385,  ....  51,  994 
Jaffray  v.  Frebain,  5  Esp.  47,  148 
James    v.    Bostwick,   Wright 

(O.),  142,  -        -        -       421,  423 

V.    Brooke,    15  La.   Ann. 

541, 1167 

V.  Browne,   1    Ball.  339,    -      899 

V.  Dixon,  21  Mo.  538,        -      734 


James  v.  Pope,  19  N.  Y.  324,   -      615 
V.  Stratton,  32  111.  202,      -        83 


Jameson  v.  Franklin,  6  How. 

(Miss.)  376,     -        -        -      701,  1074 
Janson,  Ex  parte,  3  Madd.  239; 

Buck,  337,       -        -        -       833,  834 
January  v.  Poyntz,  3  B.  Mon. 

404, 834 

Jaques   V.    Marquaud,  6  Cow. 

497 ;  8  Wend.  490,  -        -        -      481 
Jardine   v.    Hope,  19    Grant's 

Ch.  (Up.  Can.)  76,  -       770,  781,  7f^3 
Jarvis  v.  Brooks,  3   Foster  (33 

N.  H.),  136,      -        -      824,  825,  847 

V.  Brooks,  27  N.  H.  37  (59 

Am.  Dec.  359),         -        -       189,  281 

V.  Hyer,  4  Dev.  L.  (N.  Ca.) 

367,  ....    750,   1106 

Jauncey  v.  Knowles,  39  L.  J. 

Ch.  95,    -        -        -       595,  805.  809 
Jefferys  v.  Smith,  3  Russ.  158,      158, 
160,  163,  343,  934 
Jeffreys  v.  Coleman,    30  Fla. 

536, 416 

Jeffries  v.  Castleman,  75  Ala. 

263, 700 

V.  Mut.  L.  Ins.  Co.  110  U. 

S.  305,     -        -        -        -      333.  :07 

V.  Evans,  6  B.  Mon.  119,      1081. 

1084 
Jell  V.  Douglass,  4  B.  «&  A.  374,       716 
Jemison  v.  Bearing,   41   Ala. 
283,         ....    361,  10(i8 

V.  Minor,  34  Ala.  33,        193,  333 

V.  Webb,  30  Ind.  167,        -      880 

Jenkins  v.  Davis,  54  Wis.  253,     1159 

V.  De  Groot,  1  Cai.  122,     -      747 

V.  Howard,  31   La.   Ann. 

597,  ....      278,  86" 

V.  Morris,  16  M.  &  W.  879,       441 

V.  Peckiupaugh,    40    Ind. 

133,  ....      303,  765 

Jenness  v.  Carleton,  40  Midi. 

343;  42  id.  110,       -        -      691,  7:27 

V.  Smitii,  58  Mich.  2S0,     930,  931 

Jennings  v.  Baddeley,  3  K.  & 
J.  78, 5;;3 


cm 


Jen.] 


TABLE  OF  CASES, 


[JOH. 


Jennings  v.  Broughton,  17 
Beav.  234  (affd.  in  5  De  G.^ 
M.  &  G.  liiG),  -        -        -      595 

V,  Chandler,   10  Wis.    18 

[21],     739,  741.  923,  1000,  1001,  1003 

V.  Estes,  16  Me.  323,         -     1154 

Jenny  v.  Perkins.  17  Mich.  28,       942 


Jervis  v.  White.  6  Ves.  738,     - 

V.  White,  7  Ves.  413, 

Jessup  V.  Carnegie,  12  J.  &  Sp. 

260;  80  N.  Y.  441, 
V.  Cook,  6  N.  J.  L.  434,     - 


972 

9S9 


rG4. 


899,  954,  985 
Jestons  V.  Brooke,  Cowp.  793,  16 
Jewell   V.    Ketclium,   63   Wis. 

628,  ....  635,  879 
Jewett,  In  re,  1  Baiikr.  Reg. 49 1,  832 
,  In  re,  1   BauKr.  Reg.  495 

(7  Am.  Law  Reg.  (N.  S.)  291),  836 
,  Re,  7  Biss.  328 ;  15  Bankr. 

Reg.  126,  ....        95 

V.  Bacon,  6  Mass.  60,        -    1125 

V.  Meech,  101  Ind.  289,      -      565 

V.    Phillips,  5  Allen.    150,       825 

Johnes' Case.    See  Devaj'nes  v. 

Noble. 
Johns  V.  Battin,  SO  Pa.  St.  457,       410 
Johnson's  Appeal  (Pa.  1887),  8 

Atl.  R<'p.  36,  ...      305 

Johnson,  Re,   2   Lowell,   C, 

129,  .... 


C. 

5(J3,  832 
154,  715 
-  942 
347,  508, 
510,  515 
.  84  111.  54 
(25  Am.  Rep.  427),  -  -  731 
—  V.  Bernheim,  76  N.  Ca.  139 


V.  Ames,  6  Pick.  330, 
V.  Ames,  11  Pick.  173, 
V.  Barry,  95  111.  483, 


V.  Berlizheimer, 


(9.  C.  as  Johnston  v.  B.  86  id. 

339),        -        -        -      323,  325,  1069 

V.  Boone,    2  Harr.    (Del.) 

172, 

V.  Buttler,  31  N.  J.  Eq.  35, 

V.  Clark,  18  Kan.  157,       - 

V.  Coffee,  1  Ash  mead,  96, 

V.  Curtis,  2  Bro.  C.  C.  311, 


495 
938 
285 
642 


note, 


962 

ci 


Johnson  v.  Evans,  7  M.  &  G. 

240, 1105 

V.  Gallivan,  52N.  H.U3,   -     1151 

V.  Garrett,  23  ]Minn.  565,     983, 

986 
V.  Green,  4  Porter  (Ala.), 

126, 1094 

V.   Hartshorne,    52  N.  Y. 

173.         -        709,  711,  783,  786,  789 

V.  Hellely,  34  Beav.  63 ;  2 

DeG.  J.  &  S.  446  (afiE.  10  Jur. 
N.S.  1141 ;  34  L.  J.  Ch.  32),    -     664, 

665,  974 

V,  Hersey,  70  Me.  74  (35 


Am.  Rep.   303);  8  Am.   Law 
Rec.  720  (73  Me.  291).     -        -     1015 

—  V.  Hersey,  73  Me.  291,       -      410 

—  V.  Kaiser,  40  N.  J.  L.  286,       723 

—  V.  Kelly,   2  Hun,    139;    4 
Thomp.  &  C.  417,  -       813,  849 

—  V.     Xing,      6     Humph. 
(Teun.)233,     -        -        -        -     1103 

—  V.  Mantz,  69  Iowa,  710,     971,  974 

—  V.  Marsh,  2  La.  Ann.  772,       G95 

—  V.  Mdler,  16  Oh.  431,     42,  43,  45 

—  V.  Peck,  3  Stark.  66,       372,  1035 

—  V.  Rogers,  15  Bankr.  Reg. 

1 ;  5  Am.  Law  Rec.  536,      184,  186, 

291 

—  V.  Short,  2  La.  Ann.  277,       894 

—  V.  Straus,  4   Hughes,   621 


(S.  C.  as  Johnston  v.  Straus, 
26  Fed.  Rep.  57).  See  John- 
ston V.  Straus. 

V.  Totten,  3  Cal.   343  (58 

Am.  Dec.  412),        -        -        -      707 

V.  Wilcox,  25  Ind.  182,     709,  711 

V.  Wilson,  54  111.  419,     850,  855. 

888 

V.  Young,  20  W.  Va.  614,     532, 

534 

Johnston  v.  Bernheim,  86  N. 
Ca.  339  (s.  C.  as  Joiinsou  v. 
B.  76  id.  139).  -        -      323,  325 

V.  Clements,  25  Kan.  376,     1151 

V.  Crichton,  56  Md-   108,     411, 

430,  1038,  1046 


JOH.] 


TABLE  OF  CASES. 


[JOK, 


Johnston 
245, 


230, 

—  V, 


Button,  37  Ala. 
-       325,  328,  344,  374,  431, 
432,  577,  619 
Eichelberger,    13    Fla. 

83 

Freer,  51  Ga.  97,  -        -      959 

V.  Freer,  51  Ga.  313,         -      930 

V.  Straus,  26  Fed.  Rep.  57 

(s.  C.  as  Johnson  V.  Straus,  4 
Huglies,  621),         -        562,  263,  929 

V.  Warden,  3  Watts,  101,      156, 

1143,  1151,  1154 
Jones'  Appeal,  70  Pa.  St.  169.     190, 

251,  289 
Jones   V.    Anderson,   7    Leigh 
(Va.),  308,       -        -        -        -     1121 

V.  Bailey,  5  Cal.  345,         -      330 

V.  Bartlett,  50  Wis.  589,     510,513 

V.  Benedict,  83  N.  Y.  79.      496 

V.  Blair,  57  Ala.  457,     10-9,  1080 

V.  Bliss,  45  111.  143,    - 

V.  Booth,  10  Vt.  268, 


—  V.    Butler,    87  N.    Y. 
(aff.  23  Hun,  3o7), 

—  V.  Call,  93  N.  Ca.  170, 


-  629 
349,  365, 

430 
613 

-  814 
26,  1135 

—  V,  Capertou,  15  La.  Ann. 

475, 457 

-^  V.  Clark,  42  Cal.  180,      329,  374, 

429,  580,  931 

—  V.  Dexter,    130  Mass.  380 

(39  Am.  Rep.  459),  -        -       804,  309 

V.  Fegely,  4  Phila.  1,        152,  443 

V.  Fletcher,  42  Ark.  422,         550, 

570,  907,  1102,  1115 

—  V.  Foster,  67  Wis.  293,      -      709 

—  V.   Foxall,    15  Beav.   388,       485 

—  V.  Hardesty,  10  Gill  &  J. 


(Md.)  404  (32  Am.  Dec.  180), 

V.  Heavens,  4  Ch.  D.  636, 

V.  Herbert,  7  Taunt.  421, 

V.  Howard,  53  Miss.  707, 


V.  Hurst,  67  Mo.  568, 
V.  Jones,  12  Ala.  244, 
V.  Jones,  23  Ark.  212, 


91^ 


746 

677 

383 

57, 

1023 

347 

1081 

918, 

920 


Jones  V.  Jones,  1  Ired.  (N.  Ca.) 

Eq.  332,   -        -        -      181,  785,  963 
V.  Jones,  9  Lea  (Tenn.), 


627, 

—  V.  Lloyd,  L.  R.  18  Eq.  265, 


290 

574, 

581 

V.  Lusk,  2  Met.  (Ky.)  356,      561, 

565,  568,  821,  929,  1120 

V.  McMichael,  12  Rich.  (S. 

Ca.)  L.  17o,     -      32,  58,  01,  208,  580 

V.  Mars,  2  Camp.  305,        -     1068 

V.  Maund,  3  Y.  &  C.  347,       500 

V.  Morehead,    3    B.    Mon. 

377,         -        -        -       795,  873,  986 

V.    Neale,    2    Patt.    &  H. 

(Va.)  339,         183,  184,  291,  236,  541 

V.  Newsom,  7  Biss.  321,    -      754 

V.  Noy.  2   Myl.  &  K.  123,       581 

V.  OTanel,  1  Nev.  354,     331,  332 

V.  Parker,  20  N.  H.  31,     107,  134. 

196 

V.  Parsons,  25  Cal.  100,    184.  186. 

1129 

V.  Perchard,  2  Esp.  507,    -      111 

V.  Rives,  3  Ala.  11,    -        -      3G1 

V.  Sco'.t,  2  Ala.  58,    -       158,  162 

V.  Shaw,  67  Mo.  607,       850,  880, 

881 

V.  Shears,  4  Ad.  &  El.  832,       174 

V.  State,  76  Ala.  8,    -        -      277 

V.  Stevens,  5  Met.  373,      -     1151 

V.  Thompson,  12  Cal.  191.      977, 

1109,  nil 

V.  Thorn,  2  Mart.  (La.)  N. 

S.  463, 731 

V.  Walker,  103  U.  S.  444,       55. 

598,  600 

V.  Yates,  9  B.  &  C.  532,    -   1037, 

1038,  1044 
Jordan,  In  re,  2  Fed.  Rep.  319,     483, 

484,  841 

V.  Miller,  75  Va.  443,      208,  320, 

402,  949,  972 

V.  Smith,   17  Up.  Can.  Q. 

B.  590,     -        -        -        100,  623,  62S 

V.  Wilkins,  3  Wash.  C.  C. 

110,  -        -        -         56,66,1072 


cv 


Jos.] 


TABLE  OF  CASES. 


[Keu 


Joseph  V.  Fisher,  4  111.  137,      -  1155, 

1158 
Jovvers  v.  Baker,  57  Ga.  81,  -  876 
Joy  V.  Allen,  2  Woodb.  &  M. 

303, 59 

Joyce  V.  Williams,    14  Wend. 

141    (explained    in    Stall   v. 

Catskill     Bank,     18    Wend. 

400),  -  -  -  -  349,  358 
Judd  V.  Wilson,  6  Vt.  185,  859,  8G0 
Judd  Linseed  &  Sperm  Oil  Co. 

V.  Hubbell,  76  N.  Y.  543,      -     457, 

1096 
Judge  V.  Brasvvell,  13  Bush,  67 

(26  Am.  Rep.  185),  329,  341,  345 
Judson    V.    Adams,    8    Cash. 

556,         -        .        -        -  39,  43 

Julian  V.  Wrightman,    73    Mo. 

5G9, 1131 

Julio  V.  Ingalls.  1  Allen,  41,     32.  258 

K. 

Kahl  V.  Sneed,  59  Pa.  St.  388,  278 

Kahley,  In  re,  2  Biss.  383,         -  565 

Kahn  v.  Boltz,  39  Ala.  66,        -  978 

V.    Central  Smelting  Co. 

103  U.  S.  641,  -        -        163,  585 

Kaiser  v,  Fendrick,    98   Pa.   St. 

528,  -  -  -  349,  369,  1151 
V.  Lawrence  Sav.  B'k,  56 

Iowa,  104,       -        -        -        -  5 

V.  Wiihelm,  2  Mo.   A  pp. 

596, 770 

Kale  V.Elliott,  18  Hun,  198,     -    1170 
Kamra  v.  Harker,  3  Oreg.  208,     454, 

456,  1049,  1056 
Karthaus  v.  Ferrer,  1  Pet.  222.       336 
Kaskaskia  Bridge  Co.  v.  Shan- 
non, 6  111.  15,       154,  331,  332,  1145, 

1151 
Kassou    V.    Brocker,    47  Wis. 

79, 1121 

Kauffnian  v.  Fisher,  3  Grant's 

Cas.  (Pa.)  303,        -        -       538,  703 
Kaufman      v.      Schoeffel,     37 
Hun,  140,       -        -        -        -      139 


Kayser  v.  Maugham,  8  Col,  232 

(S.  C.  id.  839),  -        -        -      305 

V.  Maugham,  8   Col.  339,     305, 

545,  790 
Keasley  v.    Codd,   2  C.  &  P. 

408,  n., 

Keating  v.  Marsh,  1  Mont.   & 

A.  582  (aff.  on  app.  Marsh  v. 

Keating,    1  Bing.  N.  C.  198; 

2  CI.  &  Fin.  250),    - 
V.  Sherlock,  1  Cint.  Supe- 


73 

474 
528 


rior  Ct.  Rep.  257,   - 
Keaton  v.  Mayo,  71  Ga.  649.     810.  812 
Keck  V.  Fisher,  58  Mo.  532,     299,  405, 

406 
Kedie,  Ex  parte,  2  Deac.  &  C. 

331, 512 

Keegan  v.  Cox,  116  Mass.  289,      145, 

275,  406 
Keeler  v.  Niagara  F.  Ins.  Co. 

16  Wis.  535,  -  -  -  -  273 
Keeney  v.  Home  Ins.  Co.  71  N. 

Y.  396  (27  Am.  Rep.  60),  -  1003 
Keerl   v.  Bridgers,    10  Sm.   & 

Mar.  (Miss.)  612,  -  454,  523,  524 
Keese  v.  Coleman,  72  Ga.  65S,  825 
Keiser  v.  State.  58  Ind.  379,      43,  45, 

46 
Keith  V.   Armstrong,  65  Wis. 

235,  ...         -     566,  1118 

V.  Fink,  47  III.  272,   -        -      566 

V.  Keith,  143  Mass.  263,    -      294 

Kell  V.  Nainby,   10  B.  &  C.  20,     1023 
Keller  v.  Stolzenbach,  20  Fed. 

Rep.  47,  -        -        -        -      266 

V.  Tracy,  11  Iowa,  530,     -     1038 

Kelley  v.  Greenleaf,  3  Story, 

93,  ....       545,  790 

V.  Hurlburt,  5  Cow,  534,        150, 

608 
Kellogg  V.  Fox,  45  Vt.  348,     274,  554 

V.  Griswold,  13  Vt.  291,     37,  39. 

43 

V.  Moore,  97  111.  283.         -      887 

V.  Tolten.  16  Abb.  Pr.  35,        663 

Kellogg  Newspaper  Co.  v.  Far- 

rell,  88  Mo.  594,      -        -        -  23,  4u 


cvi 


Kel.] 


TABLE  OF  CASES. 


[Ker. 


Kelly  V.  Baker,  2  Hilt.  531,      - 

V.  Clancey,   16   Mo.   App. 

549, 

V.  Crawford,  5  Wall.  7S8, 

V.  Devliu,  15  Jones  &  Sp. 


338 

203 
698 


555  (58  How.  Pr.  487),   -      114,  1186 

—  V.  Eckford,  5  Paige,  548,         978 

—  V.   Gaines,    24  Mo.    App. 

506,  -        -        -        -    23,  40,  61 

—  V.   Hutton,    L.  R.    3  Ch. 
App.  703,        -        ...      927 

—  V.    Hutton,    L.    R.    9  Ch. 
App.  690,         -        -        -        -       185 

—  V.  Murphy  (Cal.),  12  Pac. 


480 

722 
340 


Rep.  467,         -        -        -        -      278 

V.  Scott,  49  N.  Y.  595,       -       105 

V.  Scotto,  49  L.  J.  Ch.  383 ; 

42  L.  T.  N.  S.  827,  -  -  -  22,  47 
Kelsey  v.  Hobby,  16  Pet.  269,  552 
Kelton  V.  Leonard,  54  Vt.  230,     319, 

322 
Kembie    v.    Farren,    6     Bing. 

141,  -        -        -■       -        -      250 

V.  Kean,  6  Sim.  333.  -      306 

V.  Mills,  9  Dowl.  446,         -      890 

Kemeys  v.  Richards,  11  Barb. 

312,' 

Kemp  V.  Andrews,  Carth.  170; 

3  Lev.  290 ;  1  fehow.  188,  189, 

V.  Carnley,  3  Duer,  1, 

V.  Cook,   18  Md.   130,        142,  145 

V.  Doggett,  3  G.   Greene, 

190, 695 

Kempner,  In  re,   L.   R.   8  Eq. 

286, 564 

Kendal  v.  Wood,  L.  R.  6  Ex. 

243,  -  -  -  383,  1046,  1048 
Kendall,  Ex  parte,  17  Ves.  514,     747, 

843 

V.  Garland,  5  Cush.  74,     -     1073 

V.  Hamilton,  4  App.  Cas. 

504  (s.  c.  below,  3  C.  P.  D. 

403),         -        -        -        454,  535,  748 

V.  Rider,  35  Barb.  100,     282,  844 

V.  Riley,  45  Tex.  20,  -      693 

Kendrick  v.  Campbell,   1  Bai- 
ley (S.  Ca.).  522,     -        -        -      701 


Kendrick  v.  O'Neil,  48  Ga.  631,       ,385 

V.  Tarbell,  27  Vt.  512,     188,  453. 

453a,  631,  852,  bSl 
Kenedy  v.  Cunningham, 

Cheves  (S.  Ca.),  50,  -  -  lOSl 
Kennard  v.  Adams,  11  B.  Mon. 

102, 894 

Kennebec     Co.     v.     Augusta 

Banking  Co.  6  Gray,  204,  -  333 
Kennedy,  Ex  parte,  2  De  G.  M. 

&  G.  228,  ....  833 
V.  Bohannon,  11  B.  Mon. 

118,  152,  156,  445,  608,  612,  618 

V.  Kennedy,  3  Dana,  239,      228, 

315,  591,  594,  988,  994 

V.  Lee,  3  Mer.  452,     -        -      664 

V.  McFadoD,  3  Har.   &  J. 

194, 853 

V.  Shilton,   1   Hilt.  546;  9 

Abb.  Pr.  157,  n.,  -  -  -  964 
Kenney  v.  Altvater,  77  Pa.  St. 

34,  -  -  374,  375,  607,  615,  707 
Keuney's  Patent  Button  Hole- 

ingCo.  V.  Somervell,  3S  L.  T. 

N.  S.  878 ;  26  W.  R.  786,  -  258 
Kenniston  v.  Avery,  16  N.  H. 

117, 705 

Kensington,  Ex  parte,  14  Ves. 

447,  ...        -       833,834 

Kent  V.  Chapman,   18  W.  Va. 

485,         ....       333,  963 

V.   Holliday,  17  Md.  387,    1049, 

1050 

V.  Jackson,  2  DeG.  M.  & 

G.  46, 958 

V.  Mojonier,  36  La.  Ann. 

259, 198 

V.  Wells,  21  Ark.  411,      .     450, 

1051,  1068 
Kenton  Furnace  &  Mfg.  Co.  v. 

McAlpiu,  5  Fed.  Rep.  737,  261,  720 
Keu  worthy     v.    Sawyer,     125 

Mass.  28,  29,  -  -  -  .  u\ 
Kepler   v.    Erie    Dime  Sav.  & 

Loan  Co.  101  Pa.  St.  002,  -  289 
Kerr  v.  Bradford,  26  Up.  Can. 

C.  P.  318,        ....      55? 


cvu 


Ker.] 


TABLE  OF  CASES. 


[Kin. 


Kerr  v.  Kingsbury,  39  Mich. 

150,         ....       282,  295 

V.  Potter,  G  Gill,  404,        17,  43, 

103,  104,  105 
Kerrick  v.  Stevens,  55  Mich. 

167,  -  -  -  -  -  81,  82 
Kerrigan  v.  Kelly,  17  Mo.  275,  870 
Kershaw  v.  Matthews,  2  Russ. 

(52, 249 

Ketchain  v.   Clark,    6  Johns. 

144,  -  .  -  611,  618,  621 
Ketchum,    In  re,   1  Fed.  Rep. 

815,  ....       480,  483 

V.    Durkee,    Hoffm.    Ch. 

(N.  Y.)  538,     -        -        -      446,  532 

V.  Ketchum,  1   Abb.  Pr. 

(N.  S.)  157,  -  -  -  -  894 
Kettelle  v.  Wardell,  2  111.  592,     627, 

1073 
Kickman  v.  Kunkle,    27   Mo. 

401, 343 

Kidd  V.  Brown,  2  How.  Pr.  20,  1086 
Kiddei-  v.  Mcllhenuy,  81  N.  Ca. 

123, 880 

V.  Packard,  13  Mass.  80,  -     1127 

V.  Page,  48  N.  H.  380,       349,  566 

Kilby  V,  Wilson,  Ry.  &  Moo. 

178, 480 

Kilgour  V.  Finlyson,  1  H.  Bl. 

155,  -        -        -       693,  694,  695 

Killani  v.  Preston,  4  Watts  & 

S.  14,  -  -  -  -  858,  860 
Killock  V.  Greg,  4  Russ.  285,  -  922 
Kilshaw  v.  Jukes,  3  Best  &  Sm. 

847,  -  -  18,  20,  29,  39.  61 
Kimball  v.  Hearhart,  12  Cal.  27,  241 
V.  Hamilcon   F.   lus.   Co. 

8  Bosw.  495,  -  -  -  -  405 
V.  Lincoln,  5  III.  App.  316 

(reversed,  7   id.  470,  and   99 

111.  578),  -  -  -  772,  774 
V.    Lincoln,    99     111.    578 

(afTg.  s.  c.  7  111.  App.  470, 

which  reversed  5   111.  App. 

316),        -        -        743,  772,  774,  976 

V.  Thompson,  13  Met.  283,      190, 

560 


Kimball  v.  Walker,  30  111.  482,  629 
Kimberly's  Appeal  (Pa.),  7  Atl. 

Rep.  75,  ....      527 

Kimble  v.  Seal,  92  Ind.  276,  -  937 
Kimbro  v.    Bullitt,    22    How. 

256,         322,  327,  328,  329,  341,  348, 

1049 
Kimmel  v.  Shultz,  Breese(Ill.), 

128, 1094 

Kimmins  v.  Wilson,  8  W.  Va. 

584,  -  -  .  -  2,  72,  595 
Kinder    v.    Taylor,    Gow    on 

Part.  110,  -  -  -  -  1011 
King,   Ex  parte,  17  Ves.  115,      845, 

846 

V.   Barber,  61   Iowa,  674,      646 

V.  Barbour,  70  Ind.  35,     -     146, 

611,  1151,  1154 

V.  Bell,  13  Neb.  409,        -   1055, 

1068 

V.  Chuck,  17  Beav.  335,    -      217 

V.  Courson,  57  Ga.  11,       -      629 

V.  Faber,  22  Pa.  St.  21,     -      347 

V.  Ham,  4  Mo.  275,    -        -     1154 

V.  Hamilton,  16  111.  100,   -     259, 

262,  544,  766 

V.  Hoare,  13  M.  &  W.  495,      537 

V.  Leigh  ton,  100  N.  Y.  386 

(rev.  22  Hun,  419),  -       583,  795 

V.  Smith,  4  C.  &  P.  108,    -     381, 

681,  684 
V.  Wartelle,   14  La.  Ann. 

740,         ....       942,  976 

V.  Weeks,  70  N.  Ca.  372,  -     284, 

285,  293 

V.  Wilcoinb,  7  Barb.  263,       282 

V.  Winants,  71  N.  Ca.  469,      113, 

119,  127 
Kingman  v.  Spurr,  7  Pick.  235,       72, 

74,  1113 
Kingsland  v.  Braisted,  2  Lans. 

17, 905 

Kingsley  v.  Hubbard,  39  Cal, 

655, 1131 

Kinkead,  In  re,  3  Biss.  405;  7 

Batikr.  Reg.  439  (U.  S.  D.  C. 

111.), 139 


cvia 


Kin.] 


TABLE  OF  CASES. 


[Kno. 


Kiiiloch  V.  Hamlin,  2  Hill  (S. 
Ca.),  Ch.  19  (27  Am.  Dec.  441),      577. 

578,  855,  889 
Kinney     v.     McCullough,      1 
Sandf.  Ch.  370,       -        -        -      532 

V,  Robison,  52  Mich.  389,     855, 

874 
Kinsler  v.  McCants,  4  Rich.  (S. 
Ca.)  L.  46  (53  Am.  Dec.  711),     685, 

713,  722,  724 
Kinsman  v.   Barker,    14  Ves. 
579, 962 

V.    Castleraan.    1     Mon. 

(Ky.)210,        -        -        -        .      201 

V.  Dallam,  5  Mon.  (Ky.) 

383, 202 

V.    Parkhurst,    18    How. 

289.  ....       116,  305 

Kintrea  v.  Charles,  12  Grant's 

Ch.  (Up.  Can.)  117,  -  309,  632 
Kious  V.  Day,  94  Ind.  500,  -  884 
Kipling    V.    Turner,   5     B.    & 

Aid.  261,  ....      651 

Kipp  V.  McChesney,  66  111.  460,  531 
Kirby  v.  Cannon,  9  Ind.  371,  -     148, 

1094 

V.  Carpenter,  7  Barb.  373,       825 

V.  Carr,  3  Younge  &  Coll. 

Ex.  184,  ....      581 

V.   Coggswell,  1  Cai.  505,     543, 

1017 

V.  Hewitt,  26  Barb.  607,  -      199 

V.    Ingersoll,     1     Doug. 

(Mich.)  477  (aff.   s.  c.  Harr. 

Ch.  172),  -  -  -  838,  403 
V.  Lake  Shore  &  M.  S.  R. 


R.   8  Fed.  Rep.  463 ;  s.  c.  14 

id.  261,  -  -  -  -  717,  722 
V.  Taylor,    6    Johns.    Ch. 

242, 386 

V.  Schoonmaker,   3  Barb. 

Ch.  46,  -  -  -  -  566,  569 
Kirk  V.  Blurton,  9  M.  &  W. 

284;  12  L.  J.  Ex.  117,     -     192,  199, 

201,  203 

V.  Hartman,  63  Pa.  St.  97,        91 

V.  Hiatt,  2  Ifid.  332,    681,  701,  704 


Kirk  V.  Hodgson,  3  Jolins.  Ch. 

400,  ....  432,  4m 
Kirkman  v.   Booth,   11  Beav. 

273,  -        -        -        599,  600,  739 

Kirkpatrick  v.  McElroy,  41  N. 

J.  Eq.  5;!9,  ....  1006 
V.  Turnbull,  Addison  (Pa.), 

259, 411 

Kirwan  v.  Kirwan,   2    Cr.   & 

M.  617;  4  Tyr.  491,  520,  531,  523 
Kistner  v.  Sindlinger,  33  Ind. 

114,  ...  184,  186,  824 
Kitchen  v.  Lee,  11  Paige,  107,      144, 

553 

V.  Reinsky,  42  Mo.  437,     -      566 

Kitchin  v.  Wilson,  4  C.  B.  N. 

S.  483, 1085 

Kitner  v.  Whitlock,  88  III.  513,     191, 

200,  444,  978,  979 

Klase  V.  Bright,  71  Pa.  St.  186,     629, 

630,  850,  958 
Klein  v.  Keyes,  17  Mo.  326,  -  347 
Kleinhaus  v.  Generous,  25  Oh. 

St.  667, 370 

Klock  V.    Beekman,  18   Hun, 

502,  ....     701,  1153 

Klotz  V.  Macready  (La.),  2  So. 

Rep.  203,  ....  741 
Knapp  V.    Edwards,    57   Wis. 

191,         -        -        816,  970,  984,  987 

V.  Levanway,  27  Vt.  298,       245, 

1125 

V.  McBride,  7  Ala.  19,     -       353, 

361,  691 
Knauth  v.   Bassett,    34  Barb. 

31, 566 

Knebell  v.   White,   2  Y.  &  C. 

Ex.  15, 910 

Kneib  v.    Graves,    72   Pa.  St. 

104, 377 

Knerr  v.  Hoffman,  65  Pa.  St. 

126,  -  858,  860,  865,  928,  1106 
Knight,    Re,    2    Biss.    518;    8 

Bankr.  Reg.  430,    -        -        -      832 

V.  Ogden,  2  Tenn.  Ch.  473,      258, 

1105,  1110,  1111 
Knode  v.  Baldridge,  73  Ind.  54,     1006 


cix 


Kno.] 


TABLE  OF  CASES. 


[Lak. 


Knott  V.  Knott,  6  Oregon,  142,  139, 
140,  181,  301,  302,  937,  9S6 

V.  Stephens,  3  Or.  269,      -      731 

Knowles  v.  Haughton,  11  Ves. 

168  (more  fully  rep.  in  CoU- 

yer.  Partnership,  198),  -  -  913 
Knowlton  v.  Reed,  38  Me.  246,  59,  70 
Knox  V.  Buffington,  50  Iowa, 

320,  ...        -       323,  325 

V.  Gye,  L.  R.  5  H.  L.  656,       718, 

719,  942.  945,  948,  949 
V.  Schepler,  2  Hill  (S.  Ca.), 

L.  595,  ...  -  719,  1104 
Koehler  v.  Brown,  21  How.  Pr. 

235, 858 

Kohler  v.  Mattlage,  42   N.   Y. 

Superior  Ct.  247,  -  -  -  636 
Koningsburg  v.  Launitz,  1  E. 

D.  Smith,  215,  -  -  541,  892 
Kottwitz  V.  Alexander,  34  Tex. 

689,  -  -  -  598.  602,  714 
KouDtz  V.   Holthouse,  85  Pa. 

St.  233,  -  -  -  503,  504,  510 
Krafts  V.  Creighton,  3  Rich.  L. 

273,  -        -        .        .       438,  451 

Kramers   v.   Artliur,    7    Barr, 

165,  ....     1H6,  1102 

Kreis   v,    Gorton,    23   Oh.    St. 

468,  -        -        -         53,  542,  726 

Kritzer  v.  Sweet,  57  Mich.  617,  96 
Krouskop  V.  Shontz,    51  Wis. 

204,  217,  -        -        -        -      140 

Krueger,    Re,    2    Low.     03;  5 

Bankr.  Reg.  439,  -  -  100,  628 
Kriitz  V.  Craig,  53  lud.  561,     -     738, 

849 
Kuehnemundt    v.     Haar,     58 

How.  Pr.  464,  -  -  -  933 
Kuhn  V.  Abat,  2  Martin  (La.), 

N.  S.  168,        -        -        -        -      655 

V.  Newman,  49  Iowa,  424,       28, 

274,  275 

V.  Weil,  73  Mo.  213,  -      465 

Kuhne  v.  Law,  14  Rich.  L.  18,     825, 

847 
KuU  V.    Thompson,    33  Mich. 

685,         -        -        -        .     401,  1010 


Kutcher  v.  Williams,  40  N.  J. 

Eq.  436,  ...  -  136,  138 
Kyle  V.  Roberts,  6  Leigh  (Va.), 

495,  -        .        .        .       296,  417 

L. 

Labouchere  v.  Dawson,   L.  R. 

13  Eq.  332,  -  -  -  664,  666 
V.  Tapper,  11  Moo.  P.  C. 

198, 51 

Lacey  v.  Hill,  4Cii.  D.  537  (aff. 

S.  c.  as  Read  v.  Bailey,  L.  R. 

3  App.  Cas.  94),  -  -  395,  839 
V.  Hill.  L.  R.  8  Ch.  App. 


441, 

Lacoste  v.   Bexar  County,  28 

Tex.  420,        .        -        -        - 
Lacy  V.  Kynaston,  2  Salk.  575; 

1  Ld.  Rayni.  688,   - 

V.  Le  Bruce,  6  Ala.  904,    - 

V.  McNeile,  4  Dow.  &  Ry. 


816 

700 

385 
902 

7, 884 

V.  Woolcott,  2  Dow.  &  Ry. 

458,  -        .        -        .       628,  750 

Ladd  V.  Griswold,  9  111.  25  (46 

Am.  Dec.  443),  -  -  551,  832 
Ladiga  Saw  Mill  Co,  v.  Smith, 

78  Ala.  lOS,  -  -  106-',  1088,  1093 
Ladue  v.  Hart,  4  Wend,  583,  -  1079 
Laffan  v.  Naglee,  9  Cal.  662,  26,  305 
Lafonv.  Chiun,  6  B.  Mon.  305,  446 
Lafond   v.    Deems,    81    N.    Y. 

507  (52  How.  Pr.  41 ;  1   Abb. 

N.  Cas.  318),  -  -  75,  593,  594 
Logan  V.  Cragin,  27  La.  Ann. 

352, 446 

Lahey  V.  Kingon,  13  Abb.  Fr. 

192;  S.  c.  as  Leahy  v.  King- 
on, 22  How.  Pr.  209,  -  380,  1086 
Laing  v.  Campbell,  36  Beav.  3,  958 
Laird  v.  Chisholm,  30  Scottish 

Jurist,  582,     -        -        -        -      485 

Y.  Ivens,  45  Tex.  021,        -      021 

V.  Umberger,  1  I  hila.  518,     1049 

L;ike  v.  Craddock,  3  P.   Wnis. 

15S;  1  Eq.  Cas.  Abr.- 290,      -       186 


ex 


Lak.] 


TABLE  OF  CASES. 


[Lat. 


Lake  v.  Duke  of  Argyll,  6  Q.  B. 
477, 98 

T.  Muuford,  4  Sm.  &  Mar. 

312,  ....  187,  507 
Laler  v.  Jordan.  44  Miss.  283,  -  361 
Lallancle    v,    McRae,    16    La. 

Ann.  193,  ...  -  446 
Lainalere  v.  Gaze,  1  Wash.  C. 

C.  435,  -  .  434,  849,  858,  860 
Lamar  v.  Hale,  79  Va.  147,  163,  311 
I^mb  V.  Brolaski,  38  Mo.  51,       1082, 

1083 
V,  Durant,  12  Mass.  54  (7 

Am.  Dec.  31),  70,  401,  403,  405 

V.  Grover,  47  Barb.  317,  -        43 

V.  Saltus,  3  Brev.  (S.  Ca.) 

L.  130, 383 

V.  Singleton,  2  Biev.  (S. 

Ca.)490,         -        ...      607 

Lambden  v.  Sharp,  9  Humph. 

224  (34  Am  Dec.  642),  -  416,  419 
Lambert's  Case,  Godbolt,  244,     403, 

437 
Lambert  v.  Converse,  22  How. 

Pr.  265, 377 

V.  Griffith,  44  Mich.  65,    -     962, 

978,  979 

V.  Griffith,  50  Mich.  2S6,  -      6-J9 

Lamkin  v.   Pliillips,  9  Porter, 

(Ala.),  98,  -  -  543,  559,  5G0 
LAraont  v.  Fullam,  133  Mass. 

583, 60 

Lamphire  v.  Cowan,    39    Vt. 

420. 234 

Larapton  v.  Nicliols,  1   Cint. 

Superior  Ct.  Rep.  166,  -  -  986 
Lancaster  Bank  v.  Myley,   13 

Pa.  St.  544.  -  -  -  186.  1102 
Lane,  Re,  2  Low.  333 ;  10  Bankr. 

'Reg.  135,         -       566,  836.  837,  838 

V.  Arnold,   13  Abb.  New 

Cas.  73, 198 

V.  Jones,  9  Lea  (Tenn.), 

627,  -        -        -        -      b20,  822 

V.   Roche,   Rih-y  (S.   Ca.). 

Ch.  215,  -        -        -        .       770,  8;0 

V.  Tyler.    43  JL-.  252,       -      282 

H  cxi 


Lane  v.  Thomas,  87  Tex.  157,     119, 

121 
V,   Williams,    2  Vernon, 

292,  ...  -  370,  747,  750 
Lanford  v.  Patton,  44  Pa.  584,  1065 
Lang  V.  Keppele,  1  Bin.  (Pa.) 

123,  ....       747,  750 

V.  Oppenheim,  96  Ind.  47,       849 

V.  Waring,  17  Ala.  145  (25 

id.  625),  -  -  -  291,  349,  727 
V.  Waring,  25  Ala.  625  (CO 

Am.  Dec.  533),  -  291,  294,  976 
Langan  v.  Hewett,  13  Sm.  & 

Mar.  (Miss.)  122,  -  323,  349,  351 
Langdale,    Ex  parte,    18  Ves. 

300, 16 

V.  Langdale,  13  Ves.  167,       883 


Langdon  v.  Hughes,  107  Mass. 
272, 

Lange    v.  Kennedy,    20   Wis. 

279,  -        .        .        -        . 

V.  Werk,  2  Oh.  St.  519,     - 


981 

694 

676 


Langmead's  Trusts,  7  DeG.  M. 

&  G.  353,  -  -  551,  552,  554 
Lanier  v.    McCabe,    2  Fla.    32 

(48  Aui.  Dec.  173),  328,  343,  884 
V.  Macon,  59  Ga.  187,        -      175 


Lannan  v.  Clavin,  3  Kan.  17,    968,  974 
L.insing  v.  Gaine,  2  Johns.  300 

(3  Am.  Dec.  422),  -  618,  626,  691 
Lape  V.  Parvin,  2  Disney,  560,  70 
Lapham  v.  Green,   9  Vt.  407,    1022, 

1083- 
Larkins  v.    Rhodes,    5  Porter 

(Ala.),  195,  ...  -  301 
Lasell    V.    Tucker,     5     Sneed 

(Tenn.),  33,     -        338,  340,  403,  418- 
Lassiter  v.  Jackman,  88  Ind. 

118, 854 

Laswell  v.  Robbins,  39  111.  209,     259, 
262,  765,  970,  982,  984 
Latham  v.  Keuniston,  13  N.  H. 

203,  -  -  759,  1160,  1168,  1169 
V.  Simmons,  3  Jones  (N. 

Ca.),  L.  27,  -  1105,  1111,  1112 
V.  Sk inner,  Phil.  (N.  Ca.) 

Eq.  292,  ...        -      551 


Lat.] 


TABLE  OF  CASES. 


[Lee. 


Lathrop  v.  Atwood,  21  Conn. 

117,         -       -       636,  637,  639,  879 

V.  Brown,  23  Iowa,  40,     -    1064 

V.  Kuapp.  37  Wis.  307,     876,  973 

V.  Snell,  6  Fla.  750,  -        -      195 

Lauferty  v.  Wheeler,  11  Daly, 

194, 198 

Lauffer  v.  Cavett,  87  Pa.  St.  479,  29 1 
Laugher  v.  Pointer,  5  B.  &   C. 

547,  570,  ....      463 

Laughlin  v.  Lorenz,  48  Pa.  St. 

275, 600,  601 

Laurens  v.  Hawkins,  1  Desaus. 

144, 740 

Laverty  v.  Burr,  1  Wend.  529,     349, 

362 
Law,  Ex  parte,  3  Deac.  541,    -     155, 

445 

V.  Cross,  1  Black.  533,      .      446 

V.  Ford,  2  Paige,  310,      993,  998, 

1003 

V.  Law,  2  Coll.  41,      -        -      926 

Lawes  v.  Lawes,  9  Ch.  D.  98,  211,  245 
Lawrence,  Re,  5  Fed.  Rep.  349,  416 
V.  Clark,  9  Dana  (Ky.),  257 

(35  Am.  Dec.  133),  .  852,  865 
V.  Dale,  3  Johns.  Ch.  23,      317 

V.  Robinson,  4   Colorado, 

567, 571 

V.  Rokes,  61  Me.  38,  -      951,  952 

V.  Tayloi",  5  Hill,  107,     292.  299, 

424 

V.   Trustees    of  Leake   & 

Watts  Orphan  House.  2  Den. 

577  (aff.  11  Paige,  80),  737,  750, 
- —  V.  Vilas,  20  Wis.  381,  543,  723 
Lawson  v.  Bank  of  London,  18 

C.  B.  84,         -        .  -    -"       .      674 

V.  Glass,  6  Colorado,  134,       875 

Laylin  v.  Knox,  41   Mich.  40,      531, 

533 
Layton  v.  Hall,  25  Tex.  404,  .  979 
V.  Hastings,  2  Harr.  (Del.) 

147, 421 

Lea  V.  Guice,  13  Sm.   &  Mar. 

(Miss.)  656,     156, 157,  191,  332, 1151, 

1153 


Leabo  v.  Goode,  07  Mo.  123,    -      527 

V.  Renshaw,  61   Mo.   292,       850 

Leach  v.  Church,   15  Oh.   St. 

1G9, 529 

V.  Cook,  10  Vt.  239,  -        -    1117 

V.  Kagy,  15  Oh.  St.  169,  .      537 

V.  Leach,  18  Pick.  68,     229,  305, 

814,  975 
V.  Milburn  Wagon  Co.  14 

Neb.  106,        .     173,  842,  1059,  1066 
Leaf's  Appeal,  105  Pa.  St.  505,     297, 

208 
Leaf  V.  Coles,  1  De  G.  M.  &  G. 

171, 581 

Leahey  v.    Kingon,   23  How. 

Pr.    209  (s.    c.  as  Lahey  v. 

Kingon,  13  Abb.  Pr.  192),    380,  1086 
Leake  &  Watts  Orphan  House, 

Trustees  of,  v,  Lawrence,  11 

Paige,    81     (affd.    in    L.    v. 

Trustees,  2  Den.  577),   -        -      737 
Learned  v.    Ayers,    41    Mich. 

677, 849 

Leary  v.  Shout,  33  Beav.  582,       594 
Leavitt    v.    Comer,    5    Cush. 

129, 23t 

V.  Gooch,  13  Tex.  95,       942,  943 

V.  Peck,    3  Conn.    124  (8 

Am.  Dec.  157),       -        -        -      325 
Led  den  v.  Colby.  14  N.  H.  83 

(40  Am.  Dec.  173),  -       722,724 

Lee  V.  Abrams,  12  111.  Ill,       -      899 

V.  Davis,  70  Ind.  464,         .      777 

V.  Dolan,  39  N.  J.  Eq.  193,       767 

V.  Fontaine,    10  Ala.    755 

(44  Am.  Dec.  505),        495,  503,  634, 

047 

V.  Haley,  L.  R.  5  Ch.  App. 

674 
383, 
1007 
1142 


161, 

—  V.  Hamilton,  12  Tex.  413, 


—  V.  Hardgrave.  3  Mich.  77, 

—  V.    Lashbrooke,   8    Dana 
(Ky.),  214,  181,  764,  770,  777, 

781,  785,  798 

—  V.  Macdonald,  6  Up.  Can. 

Q.  B.  (old  series)  130,     319,  427, 1154 


cxu 


Lee.] 


TABLE  OF  CASES. 


[Lev. 


Lee  V.  Onstott,  1  Ark.  206,  416,  419 
V.  Page,  7  Jur.  N.  S.  768; 

80  L.  J.  N.  S.  Ch.  857,         233,  806, 

987 

V.  St:>we,  57  Tex.  444,     693,  707 

V.  Templeton,  G  Gray,  579,       177 

V.  Wilkins,  65  Tex.  295,       1105, 

1108 
Ijeeds  Banking  Co.,  In  re,  L.  R. 

1  Ch.  App.  231,  -  -  -  51 
Lees  V.  Laforest,  14  Beav.  250,  304 
Leese  v.  Martin,  L.  R.  13  Eq. 

77, 1085 

Le  Fanu  v.  Malcomson,  1 H.  L. 

C.  637;  8  Irish  L.  R.  418,  -  1031 
Lefever  v.  Underwood,  41  Pa. 

St.  505,  ....      763 

Lefevre's  Appeal,   69  Pa.    St. 

123  (8  Am.  Rep.  229),  -  285,  289 
Lefevre  v.  Boyle,  3  B.  &  Ad. 

877, 1020 

Leffler  v.  Rice,  44  Ind.  103,  -  370 
Leftwich  v.   Clinton,  4  Lans. 

176, 127 

Leftwitch  v.  Leftwitch,  6  La. 

Ann.  346,  ....  983 
I^ggett  V.  Hyde.  58  N.  Y.  272 

(17  Am.  Rep.  244),  (affg.  1  N. 

Y.  Supreme  Ct.  418),  23,  47,  50 
Leggott  V.  Barrett,  15  Ch.  D. 

300,  ....       664,  666 

Legli  V.  Legh,  1  B.  &  P.  447,  383 
Leicestershire  Banking  Co.,  Ex 

parte,  De  Gex,  292,  -  -  842 
Leiden   v.    Lawrence,   2  New 

Rep.  283,  -  -  63,  376,  408 
Leidy  v.  Messinger,  71  Pa.  St. 

177,  -  .  -  .  852,  865 
Leighton  v.  Hosmer,  39  Iowa, 

594, 780 

Leinkauff  v.  Munter,  76  Ala, 

194, 1130 

Leinsinring  v.  Black,  5  Watts, 

303,  ....  283,  284 
Leland,  Re,    5    Ben.     168;    5 

Bankr.  Reg.  222,  -  -  825,  832 
V.  Newton,  102  Mass.  350,       742 


Le  Levre  v.  Castagnio,  5  Col- 
orado, 564,      -       -       -       -  23,  47 
Lemmon  v.  Hutchins,  1  Ohio 

Cir.  Ct.  388,  -        -       292,  417 

Lemon  v.  Fox,  21   Kan.   152,     348, 

411,439 
Lemons  v.  State,  50  Ala.  180,     178, 

AS6 
Lengle  v.  Smith,  48  Mo.  276,  -  35 
Lenow  v.  Fones,  48  Ark.  557,     297, 

298 
Leonard  v.  Leonard,  1  W.  & 

S.  342, 964 

V.  New  York  Tel.  Co.  41 

N.  Y.  544.       -        ...        43 

V.  Robbins,  13  Allen,  217,      893 

V.  Wilde,  36  Me.  265,        -      698 

V.  Winslow,  2  Grant's  Cas. 

Pa.  139,  ....    1038 

Le  Page  v.  McCrea,   1  Wend. 

164  (19  Am.  Dec.  4G9),  -     385,  527, 

531 
Le  Roy  v.  Johnson,  2  Pet.  186,     191, 

198,  361,  439,  444,  446.  451-,  608,  626 
Leslie  v.  Wiley,  47  N.  Y.  648,      151, 

1052 
Lessing  v.  Sulzbacher,  35  Mo. 

445, 191 

Lester  v.  Abbott,  28  How.  Pr. 

488  (S.  C.  as  Lester  v.  Pollock, 

3  Robt.  691,  which  see). 
V.  Pollock,  3  Robt.  (N.  Y.) 

691  (S.  C.  as  Lester  V.  Abbott, 

28  How.  Pr.  488),  556,  566,  567 

Lesure  v.  Norris,  11  Cush.  328,     585, 

629 
Levally  v.  Ellis,  13  Iowa,  5^4,  1064 
Leveck  v.  Shaftoe,  2  Esp.  468,     152, 

1022 
Level  V.  Farris,   24  Mo,  App. 

445,         -        -        825,  826,  828,  835 
Leverson  v.  Lane,  13  C.  B.  N. 

S.  278, 362 

Levi  V.  Karrick,  8  Iowa,  150,  -     660, 

974,  1007 

V.  Karrick,  13  Iowa,  344,     237, 

777,  938,  954 


CXIU 


Lev.] 


TABLE  OF  CASES. 


CLiT. 


Levi  V.  Latham,  15  Neb.  509  (48 

Am.  Rep.  361).  829,  344,  345,  427 
Levick's  Appeal   (Pa.),  2  Atl. 

Rep.  532,  ....  429 
Levin  v.  Vannevar,  137  Mass. 

532, 961 

Levine  v.  Michel,  35  La.  Ann. 

1121, 988 

Levy  V.  Cadet,  17  S.  &  R.  126 

(17  Am.  Dec.  650),  -  -  704 
V.    Cowan,   27  La.   Ann. 

556,  -  -  .  .  1101,  1113 
V.  McDowell,  45  Tex.  220,     1154 

V.  Pyne,   Car,    &  Marsh. 

453,  ....  329,  364 
V.  Walker,  10  Ch.  D.  436,       670 

V.  Williams,  79  Ala.  171,     1131 

Lewis,  Re,  8  Bankr.  Reg,  546; 

2  Hughes.  320,        -     841,  842,  847, 

848 

V.  Alexander,  51  Tex.  578,     101, 

114,  127 

V.  Allen,  17  Ga.  300.         -      331 

V.  Anderson,   20  Oh.    St. 

281,         ....      187,  295 

V.  Culbertson,  11  S.  «fe  R. 

48, 723 

V.  Davidson,  39  Tex.  6C0,      529 

V.    Edwards,   7  M.  &W. 

300, 856 

V.  Greider,  51  N.  Y.  231 

(affg.  49  Barb,  605).        -        .        43 

V.  Harrison,  81  Ind.  278,       821 

V.  Langdon,  7  Sim.  421,   -     658, 

673 

V.  Motfett,  11  m.  392,     770,  777, 

778 

V.  Paine,  1  Pa.  Leg.  Gaz. 

Rep,  508,        -        -        -        -     1103 

V.  Post,  1  Ala.  65,        1149,  1154, 

1168 

V.  Reilly,  1  Q.  B.  349,     341,  352, 

626,  690,  691 

V.   TJlton,    64  Iowa,    220 

(52  Am.  Rep.  436),  -        .        75 

V.  Westover,  29  Mich.  14,     519, 

521 


Liberty  Savings  Bank  v.  Camp- 
bell, 75  Va.  534,        411,  1038,  1043, 

1046 
Liddell  v.  Grain,  53  Tex.  549,  -  393 
Ligare  v.  Peacock,  109  111.  94,  181, 
589,  770,  781,  795,  798,  1151 
Lill  V.  Egan,  89  111.  009,  -  -  4530 
Lime  Rock  F.  &  M.  Ins.  Co.  v. 

Treat,  58  Me.  415,  -        -      342 

Lincoln  v.  White,  30  Me.  291,  288 
Lindell  v.  Lee,  34  Mo.  103,  -  382 
Linderman  v.  Disbrow,  31  Wis. 

465,         ....       850,  892 
Lindh  v.  Crowley,  29  Kan.  756,     328, 
341,  348,  361,  370 
Lindley  v.  Davis,  6  Montana, 

453, 1131 

Lindsay  v.  Gibbs,  3  De  G.  &  J. 

690, 185 

V.  Guy,  57  Wis.  200,         -     981, 

1147 

V.  Hoke,  21  Ala.  542,  296 

V.  Jaff ray,  55  Tex.  636,     -     296, 

1072 
Lindsey    v.    Edmiston,   25   III. 

359,  ....      156,  1150 

Li  11  ford  V.  Linford,  28  N.  J.  L. 

113,         ....      834,  1114 
Lingen  v.    Simpson,  1   Sim.   & 

Stu.  600,  -        -        550,  551,  561 

Lingenfelser  v.  Simon,  49  Ind. 

82, 524,  535 

Lingood  v.  Eade,  2  Atk.   501, 

505, 231 

Lininger  v.  Raymond,  9  Neb. 

40, 1131 

Linn  v.  Buckingham,  2111.  451,  1121 
v.  Ross,  16  N.  J.  L.  55,     -      477 


Linner  v.  Dare,  2  Leigh  (Va.), 

588, 747- 

Liutner  v.  Millikin,  47  111.  178,       47, 

1135,  1158 
Linton  v.  Hurley,  14  Gray,  191,  463 
Lippincott  v.    Shaw  Carriage 

Co.  25  Fed.  Rep.  577,  -  1049,  1087 
Litchfield,  Re,  5  Fed.  Rep.  47,  832 
V.  Daniels,  1  Col.  268,       -    1073 


cxiv 


Lit.] 


TABLE  OF  CASES. 


[LON. 


Littell  V.  Fitch,  11  Mich.  525,  348,  361 
Little  V.   Cambridge,  9  Cush. 

298,         ....       176,  177 

V.  Fei-guson,  11  Mo.  598,  -      700 

V.  Hazzard,  5  Hair.  (Del.) 

291,         ....     416,  1169 

V.  Merrill,  62  Me.  328,       -        70 

V.  Quinn,  1  Cint.  Superior 

Ct.  Rep.  379,  -        -        -       527.  533 

V.  Snedecor,  53  Ala.  167,     281, 

936 
IiivL'rpool,    etc.    Nav.    Co.   v. 

Agar,    14  Fed.    Rep.    615;  4 

Woods,  C.  C.  201,  -  -  173,  1059 
Liverpool,    London    &    Globe 

Ins.  Co.  V.  Verdier,  35  Mich. 

395, 271 

Livingston   v.   Blancbard,  130 

Mass.  341,       -        -        -       231,  812 

V.  Hastie,  2  Caines,  246,  -      362 

V.    Lynch,    4  Johns.    Ch. 

573,  ...  17,  213,  434 
V.  Pittsb.  &  Steub.   R.  R. 

2  Grant's  Cas.  (Pa.)  219,       428,  429 

V.  Ralli,  5  E.  &  B.  132,     -      233 

— —  V.  Roosevelt,  4  Johns.  251 

(4  Am.  Dec.  273),     13,  317,  334,  349, 

352 
Uoyd,  Re,  23  Fed.  Rep.  88 ;  5 

Am.  Law  Rec.  079,        -        -      832 

,  Re,  23  Fed.  Rep.  90,       825,  837 

V.    Archbovple,   2  Taunt. 

324, 1022 

V.  Ashby,  3  B.  &  Ad.  23,      199, 

441 

V.  Ashby,  2  C.  &  P.  138,  -      439 

V.  Carrier,  2  Lans.  364,     783,  785 

V.   Freshfield,    2   C.   &  P. 


333, 


70 


V.  Loaring,  6  Ves.  773,     75,  1028 

V.  Thomas,  79  Pa.  St.  68,       695 

L,()bdell  V.  Mclits.  &  Man.  Bk. 

33  Mich.  408,  -        -        -     1074 

Lociiraue  v.   Stewart  (Ky.).  3 

S.  W.  Rep.  903,  -  -  -  708 
Locke  V.  Hall,  9  Me.  133,       503,  55^, 

1114 


Locke  V.  Lewis,  124  Mass.  1,   -    1046 
V.  Stearns,  1  Met.  560  (35 

Am.  Dec.  383),  -  -  473,  475 
Lockhart  v.  Lytle,  47  Tex.  453,     852, 

943 
Lockridge  v.  Wilson,  7  Mo. 500,    1 140, 

1143,  1155 
Lock  wood      V.    Beckwith,     6 

Mich.  168,  -  -  306,  446,  1153 
- —  V.  Corastock,  4  McLean, 

383,         ....       694,  695 

V.  Doane,  107  111.  335,      35,  1029 

V.  Mitchell,  7  Oh.  St.  387,      715 

Lodge,  Ex  parte,  1  Ves.  Jr.  166,      833 

V.  Dicas,  3  B.  &  Aid.  611,      505 

V.  Prichard,  1  DeG.  J.  & 

S.  610,     -        -        -        -       825,  828 

V.  Weld,  139  Mass.  499,     -      671 

Loeb  V.    Pierpoint,    58    Iowa, 

469  (43  Am.  Rep.  122),  -  338,  339 
Loeschigk  v.  Hatfield,  51  N.Y.      - 

660  (aff.  5  Robt.  26 ;  4  Abb. 

Pr.  (N.  S.)  210),  -  726,  731,  732 
Loesser  v.  Loesser,  81  Ky.  139,  962 
Logan  V.  Bond,  13  Ga.  192,  -  446 
V.  Greenlaw,  29  Fed.  Rep. 

299,         ....       297,  737 

V.  Mason,  6  W.  &  S.  9,     -      491 

V.  Wells,  76  N.  Ca.  416,    -     456, 

1051 
Logic  V.  Black,  24  W.  Va.  1,  -        36 
Lomme   v.    Kintzing,   1   Mon- 
tana, 290,        -        -      322,  323,  1055 
Loudon  Assur.  Co.  v.  Bold,  6 

Q.  B.  514,  ....  655 
V.  Drennen,    116  U.  S.  461 

(rev.  Drennen  v.  London  Ass. 

Corp.  20  Fed.  Rep.  657),     5,  6,  257, 

271,  272 
London  Syndicate  v.    Lord,  8 

Cii.  D.  84,  -  -  -  -  972 
Loney  v.  Bailey,  43  Md.  10,     535,  537, 

1049 
Long.  Re,  7  Ben.  141;  9  Bankr. 

Reg.  227,  -  -  562,  563,  &32 
v.  Carter,  3  Ired.  (N.  Ca.) 

L.  338, 849 


cxv 


LON.] 


TABLE  OF  CASES. 


[Lua 


Long  V.  Garnett,  59  Tex.  229,       607, 

624 

V.  McDonald,  39  Ga.  186,     1055, 

1170 
— —  V.  Majestre,  1  Johns.  Ch. 

305,  .        -        -        .      485,  794 

V.  Story,  10  Mo.  636,       607,  695 

V.  Story,  13  Mo.  4,     -        -    1167 

Longman  v.  Pole,  1  Moo.  &  M. 

223,  -        -        .        .      383,  896 

Loomis  V.  Armstrong,  49  Mich. 

521,  ....      770,  772 
V.  Ballard,  7  Up.  Can.  Q. 

B.  366, 524 

V.  Barker,  69  111.  360,        -      465 

V.  Barrett,  4  Vt.  450,        -      899 

V.  Loomis,  26  Vt.  198,     701,  1166 

V.  Marshall,    12  Conn,  69 

(30  Am.  Dec.  598),        16,  23,  89,  43 

V.  McKenzie,  31  Iowa,  425,     594, 

994 
— —  V.  Pearson,  Harper,  L.  (S. 

Ca.)  470,  -        -        -    694,  1093 

Looney    v.     Gillen waters,    11 

Heisk.  (Tenn.)  133,        -      761,  917 
Loosemore  v.  Radford,  9  M.  & 

W.  657, 036 

Lorch  V.  Ault^an,  75  Ind.  162,     1008 
Lord  V.  Anderson,  16  Kan.  185,    388, 

812 

V.  Baldwin,  6  Pick.  348,     -    155, 

1053,  1083 

T.  Davis,  3  Allen,- 131,     140,  141 

V.  Devendorf,  54  Wis.  491,     569, 

825 

V.  Paiker,   3  Allen,   127,     139, 

140 

V.  Proctor,  7  Phila.   630,       16, 

23,  47 
Loring  v.  Brackett,  3  Pick.  403,  383 
Loscombe  v.  Russell,  4  Sim.  8,  910 
Lothrop  V.  Adams,  133  Mass. 

471  (43  Am.  Rep.  528),  -      467 
V.  Wightraan,  41  Pa.  St. 

297, 1111 

Loubat  V.  Nourse,  5  Fla.  350,       70, 

281,  290,  29;i 


Louden  v.  Ball,  93  Ind.  232  (18 

Ceutr.  L.  J.  401,  and  note),  847 
Love  V.  Blair,  72  Ind.  281,       -     1061 

V.  Carpenter,  30  Ind.  284,      790 

V.  Payne,  73  Ind.  80  (38 

Am.  Rep.  Ill),        -        -     158,  161 

V.  Rhyne,  86  N.  Ca.  576,       850 

Lovegrove  v.  Nelson,  3  M.  & 

K.  1, 160 

Lovejoy  v.  Bowers,  11  N.  H. 

404,  -        -        -        -      181,  185 

V.  Spafford,  93  U.  S.  430,     618, 

622 
Lovel  V.  Whitridge,  1  McCord, 

L.  7,  -  -  -  -  -  1079 
Lovell  v.    Gibson,    19  Grant's 

Ch.  (Up.  Can.)  280,  -  -  739 
Loveridge  v.  Larned,    7   Fed. 

Rep.  294,  -  -  -  -  524 
Low  V.  Allen,  41  Me.  248,  188.  550 
Lowe  V.  Dixon,    16  Q.   B.  D. 

455, 78 

v.  Lowe,  13  Bush,  688,     297,  298 

v.  Penny,  7  La.  Ann.  356,       612 

V.  Thompson,  86  Ind.  503,       210 

Lowell  Natl.  Bk.   v.  Train,  2 

Mich.  Lawyer,  27,  -  -  886 
Lower  v.  Denton,  9  Wis.  268,     854, 

871,  873 
Lowery  v.  Drew,  18  Tex.  786,     382, 

416,  428 
Lowry  v.  Brooks,  2  McCord  (S. 

Ca.),L.  421,        -        -        43,57,59 

v.  Cobb,  9  La.   Ann.  592,     306, 

312 
V.  Hardwick,   4  Humph. 

(Tenn.)  188,  -  ...  537 
Lucas  V.  Baldwin,  97  lud.  471,     362, 

1068 

V.  Beach,  1  M.  «&  G.  417,     854, 

868 
V.  Bruce  (Louisville  Chan- 
cery  Ct.  18G4),  4  Am.  Law 

Reg.  (N.  S.)  95,      -        -        -      462 

V.  Cole,  57  Mo.  143,  -        -        81 

V.  Coulter,  104  Ind.  81,     -     508, 

510,  511 


CXVl 


Luc] 


TABLE  OF  CASES. 


[McC. 


Lucas  V.  De  La  Cour,  1  M.  &  S. 

249,         ...  1020,  1021 

V.  Sanders,  1  McMull.  311,     410, 

421 
Luce  V.  Hartshorn,  7  Lans.  331 

(affd.  in56N.  Y.  C21),  -        -      820 
Lucht  V.   Behrens,  28  Oh.  St. 

231,         ....       600,  739 
Ijuckombe  v.  Ashton,  2  F.  &  F. 

705, 75 

Luddington  v.  Bell,  77  N.   Y. 

133  (33  Am.  Rep.  GOl;  rev.  11 

J.  &  Sp.  557),         -        -       523,  527 
Ludington   v.   Taft,    10  Barb. 

447, 936 

Ludlc  vv  V.  Cooper,  4  Oh.  St.  1,     298, 

743,  924 
Ludlurn  v.  Buckingham,  85  N. 

J.  Eq.  71;  39  id.  563,     -      743,745 
Lumberman's  Bk.  v.  Pratt,  51 

Me.  563,  -        -        -       690,  694 

Lunt  V.  Stevens,  24  Me.  534,     -     383, 

385,  681,  684 
Lush  V.  Graham,  21  La.  Ann. 

159, 455 

Lusk  V.  Smith,  8  Barb.  570,     -      695 
Lycoming  Ins.  Co.  v.   Barrin- 

ger,  73  111.  230,       -        -        -        79 
'  Lyell  V.  Saubourn,  2  Mich.  109,      424 
Lyle  V.  Jacques,  101  111.  644,   -      170 
Lyles  V.  Styles,  2  Wash.  C.  C. 

224, 763 

Lyman  v.  Lyman,  2  Paine,  C. 

C.  11,        13,  301,  319,  766,  770,  907, 

939,  974 
Lynch  v.  Bitting,  6  Jones  (N. 

Ca.),  Eq.  238,  ...      955 

V.  Fhnt,  56  Vt.  46,   -        -      429 

V.  Swanton,  53  Me,  100,    -     1100 

V.  Thompson,  61  Miss.  354,       33, 

322,  323.  345,  459,  1096 
Lyndon  v,  Gorham,  1  Gall.  367,    1103, 

1113 
Lyon  V.  Haynes,  5  M.  &  G,  504,     856, 

886 

v.  Johnson,  28  Conn.  1,    -     610, 

613,  621.  624 


Lyon  V.  Knowls,  3  Best  &  Sra. 

556,  ....  45,  59 
V.  Malone,  4  Porter  (Ala.), 

497, 878 

V.  Tweddell,   17    Ch.    D, 

529,  ....  597,  802 
Lyons    v.     Jackson,    1    How. 

(Miss.)  474,  ...  -  1093 
Lysaght  V.  Davern,  5  Bli.  N. 

R.  1, 489 

Lysagt  v.  Phillips,  5  Duer,  106,  386 
Lyth  V.  Ault,  7  Ex.  667,  -        -      505 

M. 

McAdams  v.  Hawes,  9  Bush, 

15,  -        -        110,  582,  585,  790 

McArthur  v.  Chase,  13  Gratt. 

683, 906 

V.  Ladd,  5  Oh.   514,        41,  43, 

873 

V.  Oliver,  53  Mich.  299,    -      698 

MrBain  v.  Austin,  16  Wis.  87,  411 
MoBirney  v.  Harran,   5   Irish 

Law  Rep.  428,  -  -  -  1017 
McBride   v,  Hagan,    1   Wend. 

326,  .        -  336, 414, 415,  421 

v.  Stradley,  103  lud.  465,     770, 

775 
McCabe  v.   Franks,   44  Iowa, 

208,  -  -  -  983,  984,  985 
v.  Morrison,  2  Harr.  (Del.) 

66, 1022 

McCallum  v.  Buffalo  &  Lake 

Huron  R'y  Co.  19  Up.  Can. 

C.  P.  117,  -  ...  67 
McCameut  v.  Gray,  6  Blackf. 

233, 942 

McCandless   v.   Had  den,   9  B. 

Mon.  186,  -  715,  722,  725,  1029 
McCann  v.  McDonald,  7  Neb. 

305,  -  331,  1094,  1151,  1154 

McCart  v.  Lewis,   2  B.  Mon. 

207,  ....       414,  410 

McCarthy  v.  Nash,    14   Minn. 

127,  ....  1140,  1141 
V.  Pealie,  18  How.  Pr,  133,       960 


CXVU 


Mc'C] 


TABLE  OF  CASES. 


[McC. 


McCartney  v.  Garneau,  4  Mo. 

App.  5G6-7,     -        -        -        -      734 

V.  Hubbell,  52  Wis.  360,  -      722 

V.  NixoQ,  2  Dall.  G5,  n.,   -      722 

McCarty  v.  Emlen,  2  Dall.  277; 

2  Yeates.  190,         -        -        -     1103 

V.  Nixon,  2  Dall.  05,  66,   -      716 

M^Caskill  v.  Lancashire,  83  N, 

Ca.  393,  ....      294 

McCauley  v.  Cleveland,  21  Mo. 

438,  -...,.      257 

V.  Fulton,  44  Cal.  355,    184,  281, 

291,  1102 
V.  Gordon,  64  Ga.  221  (37 

Am.  Rop.  68),  -  -  -  194 
McCauly  v,  McFarlane,  2  De- 

saus.  (S.  Ca.)  239,  -  557,  567,  906 
McClean  v.  Kennard,  L.   R.   9 

Ch.  App.  336,  -  -  795,  974 
V.  Miller,  2  Cranch,  C.  C. 

620,  ....  494,  534 
:»rClelland  v.  Remseii,  36  Barb. 

622 ;  14  Abb.  Pr.  331 ;  23  How. 

Pr.  175 ;  3  Keyes,  454;  3  Abb. 
.    App.  Dec.  74,         401,  406,  518,  686 
McClinch   v.    Sturgis,    72  Me. 

288, 4 

McCloskey    v.    Strickland,    7 

Iowa,  259,  ....  1068 
V.  Wingfield,  29  La.  Ann. 

141, 653 

McClungv.  Capehart,  24  Minn. 

17,  -  -  -  -  942, 949,  951 
McClure  v.  Hill,  36  Ark.  268,  -  465 
McClurg  V.   Howard,  45  Mo. 

365, 705 

McClurkan    v.  Byers,  74   Pa. 

St.  405, 393 

McColl  V.  Oliver,  1  Stew.  (Ala.) 

610,  ....  787,  858 
McConeghy  v.  Kirk,  68  Pa.  St. 

200, 194 

McConnell  v.  Denver,  35  Cal. 

365, 72,  73 

V.  Gardner,  Morris  (Iowa), 

272,  -"  -  -  75,  1024,  1028 
V.  Hector,  3  B.  &  P.  113,       110 


McConnell  v.  Wilkins,  13  Ont. 

App.  438,        -        -        -       349,  853 
McCord  v.  Field,  27  Up.  Can. 

C.  P.   391,      329,  343,  371,  446,  448 

v.  Seale,  56  Cal.  262,         -      129 

V.  Williams,  96  Pa.  St.  78,     664. 

666 
McCorkle    v.    Doby,'  1   Strob. 

(S.  Ca.)  L.  396  (47  Am.  Dec. 

560),        .....     1151 
McCormick's  Appeal,  55  Pa.  St. 

252, 845 

McCormick  v.   Gray,  13  How. 

26, 234 

V.   Largey,    1    Montana, 

158, 865 

v.  McCormick,  7  Neb.  440,     546, 

786 
McCowin     v.      Cubbison,     72 

Pa.  St.  358,     -        -        -        -      695 
McCoy  V.  Anderson,  47  Mich. 

502,         ....       176,  177 

V.  Boley,  21  Fla,  803,      403,  406, 

407 

V.  Watson,  51  Ala.  466,    -     1064 

McCracken  v.    Millions,  7  III. 

App.  169,        -        484,  510,  511,  808 
McCrae  v.  Robeson,  2  Murph. 

(N.  Ca.)  127,   -        -       -        -      765 
McCrary  v,    Menteer,   58  Mo. 

446, 734 

v.  Slaughter,  58  Ala.  230,       329 

McCreary    t.   Van    Hook,    35 

Tex.  631,        -        -        -       448,  647 
McCredie  v.   Senior,  4  Paige, 

378, 989 

McCrillis  v.  Hawes,  38  Me.  566,     386, 

471 
McCulloch  V.   Judd,   20    Ala, 

703, 1051 

McCullough  v.  Sommerville,  8 

Leigh  (Va.),  415,    -     340,  403,  418, 

569,  825 
M'Culloh  V.  Dashiell,  1  Har.  & 

G.    (Md.)   96   (18    Am.   Dec. 

271),         747,  825,  828,  832,  833,  884 
McCully  V.  McCuUy,  78  Va.  159,      301 
cxviii 


McC] 


TABLE  OF  CASES. 


[McL 


McCutchen  v.  Banston,  2  Ga. 

244,         -        -        -        -        -      331 

V.  Rice,  56  Miss.  455,        -    1170 

McDauiel  v.  Wood,  7  Mo.  542,  690 
McDermot  v.  Laurence,  7  S.  & 

R.  433  (10  Am.  Dec.  468),  -  289 
McDonald  v.  Beach,  2  Blackf. 

55,  .        -        -       559,  568,  824 

V.  Eggleston,  26  Vt.    154 

(60  Am.  Dec.  303),         414,  416,  418 

V.  Matney,  82  Mo.  358,         2,  17, 

29,  1160 

V.    Parker,    Sneed   (Ky.), 


208, 


446 
45 
543 
1081 


McDonnell  v.  Battle  House  Co, 

67  Ala.  90  (43  Am.  Rep.  99), 
McDougald  v.  Banks,   13   Ga, 

451, 

McDowell  V.  Tyson,  14  S.  &  R 

300,         .        .        -        -        . 
McEIroy  v.  Ludlum,  32  N.  J. 

Eq.  828, 701 

V.  Melear,  7  Cold.  140,      -      698 

McElvey  v.   Lewis.  76  N.  Y. 

373,         -        -        -       571,  994,  998 
McEwan,  Re,  12  Bankr.   Reg. 

11;  6Biss.  294,       -        -       833,  838 

V.  Gillespie,  3  Lea,  204,     -      944 

McFadden  v.  Hunt,  5  W.  &  S. 

468, 882 

McFadgen      v.       Stewart,    11 

Grant's  Ch.  (Up.  Can.)  272,  -     942, 

948 
McFarland   v.  Carey,   8  Cow. 

253  (affd.  6  Wend.  297),         -      889 

V.  Chase,  7  Gray,  462,       -      288 

V.  Crary,  8  Cow.  253,        -      475 

V.  Lewis,  8  111.  344,  -        -     1146 

V.  Stewart,  2  Watts,  111,  -      657 

McFerran  v.    Filhert,   102  Pa.  . 

St.  73,     -        -        -        -       224,  590 
McGar  v.  Drake  (Tenn.  1877),  5 

Reporter,  347,        ...        80 
McGliee  v.  Dougherty,  10  Ala. 

863, 858 

McGill  V.  Do wdle,  33  A  r k.  3 1 1 ,       64. 

365 


McGill  V.  McGill,  2  Met.  (Ky.) 

258,  -  -  709,  711,  747,  750 
McGilway  v.  Clement,  6  Mo. 

App.  597,  -  -  -  714,  733 
McGiuty  V.  Flannagan,  106  U. 

S.  661, 741 

McGlensey   v.    Cox.    1    Phila. 

387 ;  5  Pa.   L.  J.  203 ;  1  Am. 

Law  Reg.  (O.  S.)  34,     158,  160,  756, 

999 
McGowan  v.  Amer.  B'k  Co.  (S. 

C.  U.  S.  1887),        -        -        -      611 

V.  Bank  of  Ky.  5  Litt.  271,       o6l 

McGowan  Bros.  Pump  &  Mach. 

Co.  V.  McGowan,  22  Oh.  St. 

370  (aff.  2  Superior  Ct.  Rep. 

313),  -  -  -  671,  672,  690 
McGown  V.  Sprague,  23  Ala. 

524,  ....       554,  500 

McGraw  v.  Pulling,  1  Freem. 

(Miss.)  Ch.  357,  -  -  -  211 
McGregor     v.      Cleveland.     5 

Wend.  475,  200,  319,  33S.  427,  453. 
1067,  llo9,  1140 

V.  Ellis,  2  Disney,  2SG,     403,  40(), 

559,  560,  824 
McGrew  v.  Walker,  17  Ala.  824,    1 149, 

1158 
McGuire  v.  Blantou,  5  Humph. 

361, 868 

V.  O'Halloran,  Hill  &  D. 

Supp.  85,         .        -        -        -     1155 

V.  Ramsey,  9  Ark.  518,  285,  942, 

948,  950 
McGunn  v.  Hanlin,  29  Mich. 

476,  114,  127,  142,  864,  961,  903 

McHale  v.  Oertel,  15  Mo.  App. 

582,  ...  -  164,  881 
Mcllreath     v.     Margetson,     4 

Doug.  278,  -  -  -  -  7(11 
Mcllroy   v.   Adams,    32    Ark. 

315, 4  5 

Mcllvaine    v.  Fi-anklin,  2  La. 

Ann.  622,  -  -  -  •  IKiS 
Mclntire    v.     McLaurin,    2 

Humph.    71    (36    Am.    Dec. 

600), 194 


cxix 


McL] 


TABLE  OF  CASES. 


[McN. 


Mclntire  v.  Miller,  13  M.  &  W. 

725, 531 

V.   Oliver,   2  Hawks  (N. 

Ca.),  209,        ...        -      703 

V.  Yates,  104  111.  491,       825.  848 

Mclntyre  v.  Belcher,  14  C.  B. 

N.  S.  654,  -  -  -  -  219 
McKaig  V,  Hebb,  42  Md.  227,  -     908, 

930,  912,  945 
McKay  v.  Joy,  70  Cal.   581  (9 
Pac.  Rep.  910),       715,  716,  735,  909 

V.  Overton,  65  Tex.  82,   786,  880 

V.  Rutherford,  12  Jur.  21,       208 

McKean  v.  Vick,  108  111.  373,       740 
McKeand  v.  Mortimore,  1 1  Up. 

Can.  Q.  B.  428,        -       503,  507,  516 
McKee  v.  Bank  of  Mt.  Pleas- 
ant, 7  Oh.  2d  pt.  175,  377,  380, 

414 

V.  Hamilton,  33  Oh.  St.  7,     442, 

451,  453,  472,  524 

V.   Stroup,  Rice  (S.    Ca.), 

291,  -        -  ■      -        -       381,  411 

McKelvy's  Appeal,  72  Pa.  St. 

409,  -        -        583,  942,  943,  945 

McKeniia's  Appeal,   11   Pliila. 

84, 377,  452 

McKenna,  Ex  parte,  3  DeG.  F. 

&  J.  645,  -  -  284,  285,  287 
McKenzie  v.  Dickinson,  43  Cal. 

119.  -        -        -        -        -      311 

McKersher,  Re,  8  Bankr.  Reg. 

409. 1131 

McKillip    V.    Cattle,    12  Neb. 

477, 504 

McKinney  v.  Baker,  9  Oregon, 

74, 5G1 

V.     Bradbury,      Dallam 

(Tex.),  441,     -        347,361,441,447 

V.    Rosenband,    23    Fed. 

Rep.  785,         -        -        -      561,  1120 
McKnight  v.    McCutchen,    27 
Mo.  436,  ....      856 

V.    Wilkins,    1    Mo.    220 

[30S],       ....       414,  419 

McKowen  v.  McGuire,  15  La. 
Ann.  637,       -        -        -       715,  718 


McLain  v.   Carson,  4  Ark.  164 

(37  Am.  Dec.  777),  -  -  749 
McLanahanv.  EUery,  3  Mason, 

267, 543 

McLane    v.    Sharpe,    2    Harr. 

(Del.)  481,  -  -  -  415,  1035 
McLaughlin     v.     Simpson,     3 

Stew.  &  Por.  (Ala.)  85,  739,  923 
McLauriii  v.  McColl,   3  Strob. 

L.  21, 69 

McLean,  Re,    15  Bankr.    Reg. 

o33,  ....       832,  8u8 

McLellan  v.  Cumberland  Bank, 

24  Me.  534,  ....  385 
V.  Detroit  File  Works,  56 

Mich.  579,       ....  8 

McLelland    v.    Rulgeway,     12 

Ala.  482,  -        -        -        -    1160 

McLeod  V.  Bullard,  84  N.  Ca, 

315, 332 

V.  Lee,  17  Nev.  103,  -      332 

McLewer  v.  Hall,   103  K  Y. 

039, 99 

McLinden  v.    "Wentworth,   51 

Wis.  170,  -  -  199, 446, 507 
McLucas  V.  Durham,  20  S.  Ca. 

302,  ....  632,  959 
McLure  v.  Ripley,  2  Macn.  & 

G.  274, 312 

McMahan  v.  Thornton,  4  Mon- 
tana, 46, ^10 

McMahon  v.  McClernan,  10  W. 

Va.  419,  -  300,  571,  792,  1007 
V.  O'Donnell,  20  N.  J.  Eq. 

306, 43 

V.  Rauhr,  47  N.  Y.  07,     75,  1028 

McMichael    v.   Raoul,    14    La. 

Ann.  307,  -  -  -  -  771 
McMillan  v.    Hadley,   78  Ind. 

590,  .-"...  1103 
McMuUan  v.  Mackenzie,  2  G. 

Greene  (la.),  368,  -  361.1135,1138 
McMurry  v.  Fletcher,  24  Kan. 

574;  28  Kan.  337,  -        -      296 

McNair  v.  Fleming,  cited  in  3 

Dow.  218,  229,  -  -  •  107 
V.  Piatt,  46  111.  211,  -        -      411 


cxx 


McN.] 


TABLE  OF  CASES. 


[Mad. 


McNair  v.  Ragland,  1  Dev.  Eq. 

516,  ....       704,  787 

V  Rewey,  62  Wis.  167,     -     445, 

1131,  1133 
McNally  v.  Kerswell,   37  Me. 

550, 714 

McNamara  v.  Dratt,  33  Iowa, 

385, 1144 

McNaughten  v.  Partridge,   11 

Oh.  223  (38  Am.  Dec.  731),    -     377, 

420,  421,  422 
McNaughton's  Appeal,  101  Pa. 

St.  550,  -  -  416,  544,  567,  1045 
McNaughton's  Appeal,  103  Pa. 

St.  368, 377 

McNaughton  v.  Moore,  1  Hay  w. 

(N.  Ca.)  189,  -  -  -  -  580 
McNeal  v.  Blackburn,  7  Dana, 

170, 534 

McNeely  v.  Haynes,  76  N.  Ca. 

122,  ....    408,  1120 

McNeil  V.  Congregational  Soc. 

60  Cal.  105,  -  -  291,  293,  294 
McNeill  V.  Reid,  9  Bing.  68,     -      870 

V.  Reynolds,  9  Ala.  313,    -     1147 

McNeillie  v.  Acton,  4  DeG.  M. 

&  G.  744,  ....  601 
McNeish  v.  Hulless  Oat  Co.  57 

Vt.  316,     72,  316,  319,  322,  430,  580, 

1153 
McNicol    V.    McEwen,  3  Up. 

Can.  Q.  B.  (old  ser.)  485,  -  858 
McNutt  V.  King,  59  Ala.  597,  583 
V.  Strayhorn,  39   Pa.   St. 

269,  ...  -  190,  339 
McPeters  v.  Ray,  85  N.  Ca.  462,  960 
McPherson    v.    Pemberton,     1 

Jones,  L.  378,  -     116,  122,  1105 

V.  Rathbone,  11  Wend.  98,     1155 

McQuewans  v.  Hamlin,  35  Pa. 

St.  517, 349 

McRae  v.  McKenzie,  2  Dev.  & 

Bat.  Eq.  232,  -      764,  910,  968 

McRobert  v.    Crane,  49  Mich. 

483, 1071 

McShcrry   v.    Brooks,    46  Md. 

103,         -        -       801,  880,  881.  8b7 


McStea  v.  Matthews,  50  N.  T. 
166;  91  U.  S.  7,       -        -        86,682 

McWhorter  v.  McMahan, 
Clarke,  Ch.  400;  10  Paige, 
380, 299 

V.  Sell,  66  Ga.  139,    -        -    1170 

McWilliams  Mfg.  Co.  v.  Blun- 
dell,  11  Fed.  Rep.  419;  22 
Pat.  Off.  Gaz.  177,        -        -      206 

Mabbett  v.  White,  12  N.  Y.  442 
(explained  in  Petlee  v.  Orser, 
6  Bosvv.  123,  137j,  -        -      180,   403 

Mardougall  v.  Jersey  Imperial 
Hotel  Co.  2  Hem.  &  M.  528,        432 

Machinists'  Nat'l  Bank  v.  Dean, 

124  Mass.  81,  -        -        -  72,  73,  580 

Macintosh  v.  Fatinan,  38  How. 

Pr.  145, 503 

Mack  V.  Spencer,  4  Wend.  411,     I0o8 

V.  Woodruff,  87  III.  570,  -     452, 

821,  8-:9,  920 

Mackay  v.  Blood  good,  9  Johns. 

285,  -        -        -        336,  416,  419 

Mackenna  v,  Parkes,  36  L,   J. 

Ch.  306;  15  W.  R.  217,  -       805,  807 

Mackey,  Re,  2  A.  «&  E.  250,      -      234 

V.  Auer,  8  Hun,  180.  -      858 

Mackinnon  Pen  Co.  v.  Foun- 
tain Ink  Co.  48  N.  Y.  Su- 
perior Ct.  442,        -        -        -      678 

Macklin  v.  Crutcher,  6  Bush, 
401,     205,  439,  440,  443,  446.  523,  527 

V.  Kerr,  28  Up.  Can.  C.  P. 

90,  ...        -       321,  349 

Maclae  v.  Sutherland,   3  E.  & 

B.  1, 340 

Maclay  v.  Freeman,  48  Mo.  234,     1085 

Macomber  v.  Wright,  35  Me. 

156,         ....   1125,  1127 

Macy  V.  Combs,  15  Ind.  469,       23,  43, 

1155 

V.  De  Wolf,  3  Woodb.  & 

M.  193, 70 

Maddeford  v.  Austwick,  1  Sim. 
80  (aff'd  2  Myl.  &  K.  279),     -      309 

M  iddofk  V.  Astbury,  32  N.  J. 
I      Eq    181,  -        -        -     247,  298,  1012 
XX  i 


TJad.] 


TABLE  OF  CASES. 


[Man. 


Matldox  V.  Stephenson,  60  Ga. 

125, 985 

Madge  v.  Puig,  12  Han,  15,  873,  874 
Madgwick  v.  W  imble,  6  Beav. 

495.  ...  -  51,  249 
Maffet  V.   Leuckel,  93  Pa.  St. 

468,  ....  440,  450 
Mafflyn     v.     Hathaway,      106 

Mass.  414,  -  -  -  -  542 
Magdalena  Steam  Nav.  Co.  v. 

Martin,  2  E.  &  E.  94,  -  -  131 
Magee  v.  Dunbar.  10  La.  546,  398 
Maghee  v.  Baker,  15  Ind.  254,  137 
Magill  V.    Merrie,    5  B.    Men. 

168,  -        -        301,  597.  608,  012 

Magovern     v.    Robertson,     40 

Hun,  106,  -  -  -  -  23,47 
Mahan  v.  Sherman,  7  Blackf. 

378.  ...        -       880,  901 

Maher  v.  Bull,  44  111.  97,  591,  761. 
764,  780.  988,  994 
Mahnke  v.   Neale,   23  W.  Va. 

57, 962 

Maiden    v.    Webster,    30    Ind. 

517, 200 

Maier  v.  Canavan,  8  Daly,  272,       534 

V.  Horman,  4  Daly,  168,       676 

Main  v.   Howlaud,   Ricli.  Eq. 

Cas.  352.  -        -        -       954,  958 

Maingay  v.  Lewis,  Irish  Rep. 

5  Com.  L.  229   (rev'g    3  id. 

495), 533 

Mainwaring  v.  Newman.  2  B. 

6  P.  120,  -  -  -  883,  900 
Mair  v.  Bacon,  5  Grant's  Ch. 

(Up.  Can.)  338,      -        -       164,  165 

V.  Beck  (Pa.),  2  All.  Rep. 

218,         -        -        -        379,380,688 

V.  Glennie,  4  Jl.  &  S.  240,        59 

Maitland  v.  Goldney,  2  East, 

4-20, 1051 

Major  V.  Hawkes,  12  111.  298,     681, 

682 
Malbec  de  Montjoc  v.   Sperrv, 

95  U.  S.  401,  -      974.  976,  1075 

Malcolinson  v.  Malcohnson,   1 
Irish  L.  R.  Ch.  D.  228,      441,  453a 

ex 


Malley  v.  Atlantic  Ins.  Co.  51 

Conn.  222,      -        -      256,  263,  271 
Maltby  v.  Northwestern  Va.  R. 

R.  Co.  16  Md.  422,        316,  317,  322, 

373,  430 
Manchester  v.    Mathewson,   3 

R.  I.  237,        -        -        -        -      942 
Manchester  Bank,  Ex  parte,  12 

Ch.  D.  917,     -        -        -        -      563 
Manchester,    etc.     Bank,     Ex 

parte,  L.  R.  18  Eq.  249,         -      842 
Manegold   v.    Dulau,  30  Wis. 

541,  ....     543,  1017 

Manhattan  Co.  v.  Ledyard,    1 

Caines,  192.  -  -  -  -  1008 
Manhattan  Brass  &Mfg.  Co.  v. 

Sears,  45  N.  Y.  797  (6  Am. 

Rep.     177);    rev.     s.     C.      1 

Sweeney,  426,        -        -  17,  47 

Manhattan    Ins.  Co.   v.   Web- 
ster, 59  Pa.  St.  227,       -       261,  271 
Manley  v.    Taylor,    50  N.   Y. 

Sup.  Ct,  26,  -  -  -  -  818 
Mann  v.  Flanagan,  9  Oregon, 

425,  .        -        .        .       770,  777 

V.  Higgins,  7  Gill,  265,     -      823^ 

V.  Locke,  11  N.  H.  246,     -    701, 

704 

V.  Taylor,  5  Heisk.  267,     -        59 

Manning  v.  Biickell,  2  Hayw. 

(N.  Ca.)  13:J,    -        -     081,  722,  1006 

V.  Gasharie,  27  Ind.  399,  -        76 

V.  Hays,  6  Md.  5,     358,  36 J,  372, 

401 

V.  Smith,  16  Nev.  85,        -      722 

V.  Williams,  2  Mich.  105,       749 

Manny  v.  Frasier,  27  Mo.   419,       503 
Manson,  Town  of,  y.  Ware,  63 

Iowa,  345.  -  -  -  101,  1154 
Mant  V.  Mainwaring,  8  Taunt. 

139;  2  Moore,  9,  -  -  -  1167 
Manuel  v.  Escolle,  65  Cal.  110,  735 
Manuf.  &  Mech.  Bk.    v.  Gore, 

15  Mass.  75  (8  Am.  Dec.  83),       479 
Manufacturers',   etc.   Bank  v. 
Winsiiip,  5  Pick.  11   (16  Am. 
Dec.  369),        -        192,  361,  443,  445 
xii 


Man.] 


TABLE  OF  CASES. 


[Mar. 


551 
441 

10G7 


393 

133 
428 


Manville  v.  Parks,  7  Colorado, 

128,         -        -        -        322,  329,  374 
Maquoketa,  City  of,  v.  Willey, 

35  Iowa,  323, 
Mare  v.  Charles,  5  E.  &  B.  978, 
Maret  v.   Wood,  3  Cranch,  C. 

C.  2, 

Marieuthal  v.  Am  burgh,  2  Dis- 
ney, 586,  -        -        -   1005,  1088 
Marietta     &    Cin.     R.    R.    v. 

Mowry,  28  Hun,  79, 
Marine  Bank  v.  Ogden,  29  III. 

248, 

Marine  Co.  v.  Carver,  42  111.  67, 
Maritime  Bank  of  Bangor  v. 

Rand,  24  Conn.  9,  -        -   105G,  1065 
Markham  v.   Buckingham,  21 

Iowa,  494,       -        -        -  1059,  10G4 

V.  Gehan,  43  Mich.  74,       -    1103 

V.  Hazeu,  48  Ga.  570,      199,  347, 

441,  510,  515 

V.  Jones,  7  B.  Mon.  456,      91,  91 

Marks  v.  Hill,  15  Gratt.  400,     565,  567 

V.  Say  ward,  50  Cal.  57,     -      184 

V.  Sigler,  3  Oh.  St.  358,     -    1100 

V.  Stein,  11  La.  Ann.  509,         17, 

32.  853 
Marlatt  v.  Scantland,  19  Ark. 

443, 715,  716 

Marlett  v.  Jackman,  3   Allen, 

287,   -        -    315,  340,  580,  610,  1073 
Marlin  v.  Kirksey,  23  Ga.  164,      543, 

550,  561 
Marquand.v.  N.  Y.  Mfg.  Co.  17 

Johns.  525,       577,  583,  585,  788,  812 

V.  Webb,  16  Johns.  89,      -    1168 

Marsh's   Appeal,  69  Pa.  St.  30 

(8  Am.  Rep.  206),  770,  777,  780 

Marsh  v.  Bennett,  5  McLean, 

117,    -        -    340,  504,  552.  563,  641 

V.  Davis,  33  Kan.  326,      283,  301 

V,  Dawes,  3  Biss.  351,        -        43 

V.  Gold,  2  Pick.  285,    339, 350, 365 

V.  Keating,  1  Bing.  N.  C. 

198;  2  CI.  &  Fin.  250  (affirms 

Keating  v.   Marsh,    1  Mont. 

&  A.  583),       ....      474 


Marsh  v.  Mead,  57  Iowa,  535,  -  1063 
V.  Northwestern  Nat'l  Ina. 

Co.  3  Biss.  351,  ...  29 
V.   Russell,    66  N.  Y.  283 

(rev,  2  Lans.  340),  -  27,  113 
V.  Thompson  Nat'l  Bk.  2 

111.  App.  217,  -        349,  358,  867 

Marsliall  v.  Colmau,  2  Jac.  & 

W.  266,  -        -        -        -       199,  988 

V.  Johnson,  33  Ga.  500,     -      300 

v.  McGregor,  59  Barb.  519,     1101 

V.  Watson,  25  Beav.  501,  -      990 

V.  Winslow,  11  Me.  58  (25 

Am.  Dec.  264),  -  -  -  875 
Marsteller  v.  Weavei',  1  Gratt. 

391, 949 

Marston  v.   Dewberry,  21  La. 

Ann.  518,        -        -        -   1101,  1113 

V.  Gould,  69  N.  Y.  220,     -        56 

Marten     v.    Van    Schaick,     4 

Paige,  479,    660,  993,  994,  998,  1003. 

1007 
Martien   v.    Manheim,    80  Pa. 

St.  478, 107;; 

Martin   v.   American    Express 

Co.  19  Wis.  3J6,  -  -  -  10:.> 
V.  Crump,   2  Salk.  444;  1 

Ld.  Ray.  340;  Comb.  274,      -       733 

V.  Davis,  21  Iowa,  535,      -     1099 

V.  Fewell,  79  Mo.  401,       -  5,  611 

V.  Good,  14  Md.  398,  -      893 

V.  Kirk,   2  Humph.   529,      695, 

700 

V.  Morris,  02  Wis.  418,    281,  294, 

295,  297 

V.  Moulton,  8  N.  H.  504,  -      487 

V.  Searles,  28  Conn.  43,     618,  622 

V.  Smith,   25  W.  Va.  579,      281, 

290 

V.  Solomon,  5  Harr.  (Del.) 

344, 858 

V.  Stubbings,  29  111.  App. 

381, 881 

V.  Thraslier,    40  Vt.    460,       336 

V.  Walton,  1  McCord  (S. 

Cn.),  L.   16,      -       617,  618,  621,  695 

V.  Young.  85  N.  Ca.  156,     103!» 


CXXUl 


Mar.] 


TABLE  OF  CASES. 


[May. 


Martyn  v.  Gray,  14  C.  B.  N.  S. 

824,         -        -        -        -    90,  91,  99 

V.  Knowlrs,  8  T.  R.  146,      274 

Marvin  v.  Buclianan,  62  Barb. 

4G8, 443 

V.  Dutcher,  26  Minn.  391,     1171 

V.  Wilber,  52  N.  Y.  270,     315, 154 

Warwick,  Re,  2  Ware,  233,     832,  §33, 

834 
Marx  V.  Bloom,  21  La.  Ann.  6,  853 
Marye  v.  Jones,  9  Cal.  335,  -  1006 
Mason    v.   Connell,    1    Whart. 

381,  152,  156,  158,  161,  429,577 

V.  Denison,  11  Wend.  612 

(affd.  15  id.  64),  -        -     149,  1087 

V.  Denison,  15  Wend.  04,      148, 

149 
V.  Eldred,  6  Wall.  231 ;  7 

Am.  Law  Reg.  (N.  S.)  402,      454, 

535.  537,  1086 

V.  Hackett,  4  Nev.  420,     -        43 

V.  Jouett,  2  Dana,  107,      -      385 

V.  Parker,  16  Grant's  Ch. 

(Up.  Can.)2o0,  -      187,291,295 

V.  Partridge,  66  N.  Y.  633,       323 

V.  Potter,  26  Vt.  722,         -  39,  43 

V.  Rice,  66  Iowa,  174,        -     1121 

V.  Runisey,   1   Camp.  384,       441 

V.  Titlany,  45  111.  31)2,     529,  534, 

707,  711,  730,749,  750 

V.  Tipton,  4  Cal,  276,       275,  276, 

403 
V.  Wickersham,  4  Watts 

&  S.  100,         -        -        -      524,  527 
Massey  v.  Pike,  20  Ark.  92,      -      419 

V.  Tingle.  29  Mo.  437,        -      94D 

Masters  v.  Freeman,  17  Oh.  St. 

323,  ...        -     863,  1029 

M.asterson  v.  Goodlett,  46  Tex. 

402. 723 

Mathers  v.  Green,  L.   R.  1  Cli. 

App.  29,  ....        69 

Mathews  V.  FelcU.  25  Vt.  536,     115G 
Mathewson  v.  Clarke,  6  How. 

122,  -        -        -         164,  167,  927 

Matlack  v.  James,  13  N.  J.  Eq. 

120,         -        184,  281,  291,  295,  440 

ex 


Matlock  V.  Matlock,  5  Ind.  403,      281, 

285,  290,  297 
Matney  v.   The    Gregg  Bros. 

Co.  19  Mo.  App.  107,  -  722,724 
Matteson     v.     Nathanson,    38 

Mich.  377,  -  -  -  694,  727 
Matthews  v.  Colburn,  1  Strob. 

(S.  Ca.)  L.  258,       -        -        -      534 

V.  Dare,  20  Md.  248,  -      325 

V.  Hunter,  67  Mo.  293,      -      294 

V.  McStea,   91  U.  S.  7;  50 

N.  Y.  166.       ....      582 

V.  Wallwyn,  4  Ves.  118,  -     958, 

964 
Mauck  V.  Mauck,  54  III.  281,  -  977 
Maude,  Ex  parte,  L.  R.  2  Ch. 

App.  550,  -  -  837,  838,  843 
,  Ex  parte,  L.  R.  6  Ch.  App. 

51, 813 

V.  Rodes,  4  Dana,  144,      780,  863 

Maughlin  v.  Tyler,  47  Mtl.  545,       338 
Mauldin  v.  Branch  Bk.  at  Mo- 
bile, 2  Ala.  502,    349,  352,  362,  618, 

621 
Maulson  v.  Peck,  18  Up.  Can. 

Q.  B.  113,  ....  23 
Maund  v.  Allies,  5  Jur.  860,  958,  964 
Mauney  v.  Coit.  80  N.  Ca.  300 

^30  Am.  Rep.  80),  -  -  095,  696 
Maunsell    v.    Willett,    30    La. 

Ann.  322,  -  -  -  -  43,  59 
Mawmau  v.  Giliett,  in  note  to 

2  Taunt.  324,  -        -        -    1022 

Maxey  v.  Averill,  2   B.    Mon. 

107, 749 

V.  Strong,  53  Miss.  280,     -     694, 

695,  700 
Maxwell  v.  Allen,  78  Me.  33,   -      250 

V.  Day,  4")  ind.  509,     523,  524.  527 

V.  Gibbs,  32  Iowa,  32,      102,  109 

V.   Port  Teuuant  Co.    24 

Beav.  495,  ....  1012 
V,   Wheeling,   9  W.  Va. 

206,  -        -        -        184,  189,  824 

May,  Re,  17  Baukr.  Reg.    192,      842, 

848 

,  Re,  19  Bankr.  Reg.  101,  -      838 

xiv 


May.] 


TABLE  OF  CASES. 


[Mel, 


May  V.  Hewitt,  33  Ala.  161,     -      441 
Mayberg  v.   Steagall,  51  Tex. 

351, 558 

Mayberry  v.  Bainton,  2  Harr. 
(Del.)  24,  ...     349,  1088 

V.  Willoughby,  5  Neb.  368 

f25  Am.  Rep.  491),  -        -      704 

Maybiii  v.  Moorman,  21  S.  Ca. 

346, 54") 

Mayer  v.  Clark,  40  Ala.  259,     -     559, 

560,  824 

V.  Taylor,  69  Ala.  402,       -      646 

Mayliew's  Case,  5  De  G.   M,  & 

G.  837,    ....      160,  187 
May  hew  v.  Heri'ick,  7  C.  B. 

229.  ....     274,  1108 

Mayuard  v.  Briggs,  26  Vt.  94,    1022, 

1025 

V.  Fellows,  43  N.   H.  255,     435. 

453a,  1068 
996 
959 
139 


V.  Railey,  2  Nev.  313, 


Mayo  V.  Bosson,  6  Oh.  525, 

V.  Soyster,  30  Md.  402,     ■ 

Mayou,  Ex  parte,  4  DeG.  J.  & 

S.  664 ;  11  Jur.  N.  S.  433 ;  12 

L.  T.  N.  S.  629,      .        .        -      562 
Mayrant  v.  Marston,   67  Ala. 

453, 66 

May  son  v.   Beazley,   27  Miss. 

106,         -        -        -        .       763,  794 
Meacliam  v.  Batchelder,  3  Pin. 

(Wis.)281;  3Chand.  316,      -    1068 
Mead  v.  Bank  of  Fayetteville, 

2    Bankr.    Reg.   [65]   173;    6 

Blatch.    180;    7    Am.    Law 

Reg.  (N.  S.)  818,     ...      841 

V.  Byington,  10  Vt.  116,  .      742 

V.  Raymond,  52  Mich.  14,       724 

V.  Shepard,  54  Barb.  474,       334 

Meader  v.  Leslie,  2  Vt.  569,     723,  724 

V.  Malcolm,  78  Mo.  550,    .      448 

V.  Scott,  4  Vt.  26,      .        .      723 

Meador    v.   Hughes,    14  Bush 

(Ky.),  653,  27,  C8,  507,  558,  822 

Meaher  v.  Cox,  37  Ala.  201  (S. 

C.  Ala.  Sel.  Cas.  15()).       26.  67,  158, 
161,  233,  !:76,  594 
ex 


Meason   v.  Kaine,  63   Pa.    St. 

335,  -     ,   -        -      301,  865,  1012 

Mebane  v.  Spencer,  6  Ired.  L. 

423, 529 

Mechanics'  Bank  v.  Foster,  19 

Abb.  Pr.  47;  44  Barb.  87;  29 

How.  Pr.  408,         .        .        -      352 

V.  Hildreth,  9  Cush.  356,     347, 

401,  543,  561,  583 

V.    Livingston,  33  Barb. 

458,  ....      349,  613 

Mechanics'  Bank,  Receivers  of, 

V.  Godwin,  5  N.  J.  Eq.  334,  184, 
185,  295,  577,  585,  586,  927 
Mechanics'  &  Farmers'  Bk.  v. 

Dakin,  24  Wend.  411,  107,  196,  439 
Mechanics'  &  Traders'  Ins.  Co. 

V.   Richardson,  33  La.  Ann. 

1308  (39  Am.  Rep.  290),  362,  446 
Mecutchen  v.  Kennady,  27  N. 

J.  L.  230.  -  -  -  358,  362 
Med  berry  v.   Soper,    17    Kan. 

369,  .  .  .  322, 457,  527 
Medbury  V.  Watson,  6  Met.  246 

(3'J  Am.  Dec.  726),  -        -     1034 

Meddl  V.    Collier,    16  Oh.  St 

599, 4,  7 

Med  win  v.  Ditcham,  47  L.  T. 

N.  S.  250,  ....  939 
Meech  v.  Alien,  17  N.  Y.  300,  .     825, 

847,  8J8 
Meehan  v.  Valentine,  29  Fed. 

Rep.  276,  .  .  .  .  23,  47 
Meeker  v.  Thompson,  43  Conn. 

77, 1079 

Meggett  V.  Finney.  4  Strobh. 

(S.  Ca.)L.  220,  -  .  .  704 
Meily  v.  Wood,  71  Pa.  St.  488 

(10  Am.    Rep,    719)   (rev.    8 

Phila.  517),  -  173,  186,  289,  1102 
Mellendy  v.   New  Engl.  Prot. 

Union,  36  Vt.  31,  -        -        .      20:) 

Mellersh  v.  Keen,  27  Beav.  236,      574. 

581,  597,  664,  769,  773,  794 

V.  Keen,  28  Beav.  453,       .      661 

Mellinger  v.  Parsons,  51  Iowa, 

58, 193,  57G 

XV 


Mi^L.] 


TABLE  OF  CASES. 


[MiG 


l^Hltzer  V.  Doll,  91  N.  Y.  3G5,  -  1147 
Melvin,    Re,    17    Bankr.    Reg. 

543,  -  -  -  500,  564,  1171 
Menagh  v.  Wliitwell,  52  N.  Y. 

146  (11  Am.  Rep.  683),  189,  553, 
557,  562,  566,  567,  1111 
Mendenhall,  Re,  9  Bankr.  Reg. 

497. 5 

V.  Benbow,  84  N.  Ca.  640,     290, 

294,  719,  823 
Jlercantile  Bk.  v.  Cox,  88  Me. 

500, 443 

Mercein  v.  Andrus,  10  Wend. 

461,  .        -        -        -       349,  368 

Mercer  v.  Say  re,  Anth.  (N.  Y.) 

119, 7C0 

Merchant  v.  Belding,  49  How. 

Pr.  344, 349 

Merchants'   Bk.    v.    Rudolf,  5 


Neb.  527, 


394 


Merchants'  &  Manuf.    Bk.  v. 

Stone,  38  Mich.  779,      -        -     4,  5 
Merchants'  Nat'l  Bank  v,  Ray- 
mond, 27  Wis.  567,        -       136,  848 
Meredith's  Case.     See  State  F. 

Ins.  Co. 
Meredith  v.    Ewing,    85    Ind. 

410,  -     .  -        -        -        -      640 

Meridian  Nat'l  B'k  v.  Brandt, 

51  Ind.  56,      -        -        -        -      822 
Merot  V.  Burnand,  4  Russ.  247; 

2  Bli.  N.  S.  215,      -        -        -      287 
Meriick  v.  Brainard,  38  Barb. 

574,  ----- 
V.  Gordon,  20  N.  Y.  93,    - 


158 
66 
70 


Merrill  v.  Bartlett,  6  Pick.  46, 

V.  Green,  55  N.  Y.  270,     503, 

504,  630,  880 
V.  Guthrie,  1  Pin.  (Wis.) 

435, 543 

V.  Williams,  17  Kan.  287,      614 

Merriman  v.  Ward,  1  J.  &  H. 

371, 489 

Merritt  v.  Day,  33  N.  J.  L.  32 

(20  Am.  R.'p.  362),  -        -      705 

V.  Dickey,  38  Mich.  41,     29:?,  2d4, 

COO,  715 


Merritt  v.  Pollys,  10  B.  Mon. 
355,         -        -        607.  604,  703,  706 

V.  Walsh,   32  N.   Y.   085, 

089, 70 

Merriwether  v.  Hardeman,  51 

Tex.  436,  785,  814.  852,  801,  961 
Mershon  v.  Hobensack,  22  N. 

J.  L.  372,        -  1050,  1154,  1156 

Merwin  v.   Playford,    3  Robt. 

702. 43 

Meserve  v.  Andrews,  104  Mass. 

360, 43 

V.  Andrews,    1€6    Mass. 

419,  -  -  230,  231,  767,  815 
Messer  v.  Messer,  59  N.  H.  375,     281, 

291 
Messner  v.  Lewis,  20  Tex.  221,     193, 

195 
Metcalf  V.  Bruin,  12  East,  400 
(aff.    Metcalfe    v.    Bruin,    2 
Camp.  422),    -        -        -        -      651 

V.  Fonts,  27  111.  110,  -      887 

V.  Officer,  1  McCrary,  325; 

2  Fed.  Rep.  040,     -    150,  152,  1155, 

1150 
V.  Redmon,  43  111.  264,       78,  83 


Metcalfe  v.  Rycroft,  6  M.  &  S. 

75,  ....     383,  lOlfl 

Mi^zner  V.  Baldwin,  11  Minn. 

150, 78 

Mexican  Mill  v.  Yellow  Jacket 

Mine,  4  Nev.  40,  -  -  1018,1065 
Mcyberg  v.  Steagall,  51  Tex. 

351, 1109 

Meyer  v.  Atkins,  29  La.   Ann. 

586,         .        -        -        -       523,  694 

V.  Krohn,  114  111.  574,     164,  168, 

616 
V.  Schacher,  33  L.  T.  N.  S. 


37, 


V.  Sharpe,  5  Taunt.  74, 


78 
258 

40 
110 


Meyers  v.  Field,  37  Mo.  434,     • 
Meymot'sCase,  1  Atk.  193, 
Meymottv.  Meymott,  31  Beav. 

445, 786 

Micliael   v.    Workman,    5   W. 

V,t.  391,  -        -        193.  19\  341,  370 
cxxvi 


Mic] 


TABLE  OF  CASES, 
383 


[Mri„ 


Michell,  Ex  parte,  14  Ves.  597, 
Michigan    Air     Line     R'y    v. 

Mellen,  4-t  Mich.  3-31,  -  332,  429 
Micliigau  Ins.  Bank  v.  Eldred, 

9  Wall.  544,  -  -  -  -  322 
Mick  V.  Howard,  1  Ind  250,  194,  401 
Mickle  V.  Peet,  43  Conn.  G5,  849,  851 
Middled  itch    v.     Sharland,     5 

Ves.  87, 904 

Mifflin  V.    Smith,  17   S.  &  R. 

165,  -  202,  203,  216,  443,  445 
Mil  burn  v.  Codd,    7   B.    &  C. 

419, 854 

Miles'  Claim,  L.  R.  9  Ch.  635,  -      439 
Miles  V.  Ogden,  54  Wis.  573,    -     489, 

495 

V.  Pennock,  50  N.  H.  564,       847 

V.  Wann,  27  Minn.  50,     54,  1004 


789 
993 

772 
882 


Mil  ford  V.    Milford,    McCl.    & 

Y.  150, 957 

Millv.  Sheibly,  68  Ga.  556,       -        33 
Millar  v.  Craig,  6  Beav.  433,    -     782, 

9G4 
Millaudon  v.  Sylvestro,  8  La. 

263, 

Mill  bank  v.  Revett,  2  Mer.  405, 
MUler's  Appeal  (Pa.),   7    Atl. 

Rep.  190,        -        -        -        - 
Miller  v.  Andres,  18  Ga.  366,  - 

V.  Bartlet,  15  S.  &  R.  137,  16,  43 

V.  Brigham,  50  Cal.   615,     158, 

276,  577,  585,  756,  927 
V.  Cliandler,  29  La.  Ann. 

88, 43 

V.  Clarke,  37  Iowa,  325,    -      825 

V.  Consolidation  Bank,  48 

Pa.  St.  514,     -        -        -       359,  373 
V.  Creditors,  37  La.  Ann. 

604, 106 

V.  Dow,  17  Vt.  235,  -        -      428 

V.  Estill,  5  Oh.  St.  508,     -     551, 

560,  832,  833 

V.  Florer,   15  Oh.  St.  148,     687, 

1082 

V.  Harris,  9  Baxter,  101,  -      944 

V.  Hiaes,  15  Ga.  197,       329,  344, 

361,  362,  374 
I  czxvii 


Miller  v.  Hoffman,  20  Mo.  App. 

199, 780 

V.  House,  67  Iowa,  737,    -      424 

V.  Howard,  26  N.  J.    Eq. 

166,  ...        -       982,  985 

V.  Hughes,   1  A.  K.  Mar. 

(Ky.)  181,        -        -         44,  323.  33.5 

V.  Jones,  39  111.  54,     -    715,  739, 

765,  923,  101)1,  1003 

V.   Knauff,    2  Pa.    L.   J. 

Rep.  11,  ....      903 

V.  Lord,  11  Pick.  11,       785,  78'.), 

939 

V.  McClauachan,  1  Yeates 

(Penn.),  144,  ....    1168 

V.  Manice,  6  Hill,  114,    348,  370, 

445,  4S0 

V.  Marx,  65  Tex.  131,      136,  137, 

139 

V.  Miller,  8  W.  Va.  542^    -     526, 

694 

V.  Neimerick,  19  111.  172,       710 

V.  Northern  Bank,  34  Miss. 

413,  ,  -        -        -        -      456,   1051 

V.  Perrine,  1  Hun,  620,     -      389 

V.  Price,  20  Wis.  1 17,        33,  545, 

790,  1039 

V.  Proctor,  20  Oh.  St.  442.      184, 

187,  291,  292,  295 
V.  Bay  Circuit  Judge,  41 


Mich.  326,       .... 

—  V.  Richardson,  2  Ired.  L. 
250, 

—  V.  Sims,  2  Hill  (S.  Ca.),  L. 


479, 

—  V.   Sullivan,   1   Cint,    Su- 


perior Ct.  Rep.  271, 

—  V.  Talcott,   54  N.   Y.   144 


1119 

• 

347 
145 
258 

(affg.  46Barb.  171),  -  -  880 
Miller's  River  Nat'l  Bank   v. 

Jefferson,  138  Mass.  Ill,  843,  884 
Millerd  v.  Thorn,  50  N.  Y.  403,     534. 

loer 

Millett  V.  Holt,  60  Me.  169,       -  63 

Milliken  v.  Loring,  37  Me.  408,  687 

V.  Milliken,  8  Irish  Eq.  16,  249 

Mills,  Ex  parte,  8  Ch.  D.  669,  50 


Mil.] 


TABLE  OF  CASES. 


[Moi. 


Mills,  Ro,  11  Baiikr.  Reg.  74,   -      82S 

V.  Barber,  4  Day,  4:28,     401,  408, 

406,  437 

V.  Bunce,  29  Mich.  364,    -     447, 

1073 
V.    Dickson,    G    Rich.    (S. 

Ca.)  L.  4S7,  -  -  -  877,  379 
V.  Fellows,    80  La,   Ann. 

(Part  II),  824,  -  -  7G2,  770 
V.  Fovvkes,  5  Binj]:.   N.  C. 


455, 

—  V,  Hanson,  8  Ves.  68, 

—  V.  Kerr,  83  Up.  Can.  C.  P. 


63. 


489 
971 

450 


Milmine  v.  Bass,  29  Fed.  Rep. 

632, 341 

Milne  v.   Bartlett,  3  Jur.  353,       581 
Miluer  v.  Cooper,  05  Iowa,  180,      729, 

731,  999 
Milton  V.  Mosher,  7  Met.  244,     406, 

407,  418 
Minchiu,  Ex  parte,  2  Gl.  &  J. 

287, 835 

Miner  v.  Downer,  19  Vt.  14,     196,  205 

V,  Downer,  20  Vt.  461,     195,  205, 

11 G5 

V.  Lorman.  56  Mich.  212,       849 

Minnet  v,  Whitney,  5  Bro.  P. 

C.  489, 325 

Minock  v.  Shortridge,  21  Mich. 

304, 145 

Minor  v.  Gaw,  11  Sm,  &  Mar. 

(Miss)  322,    -        -     410,1038,1040 
Miser  v.  Trovlngcr,  7  Oh.  St. 

281,  287,  ....      398 

Mitchel  V.  Read,  61  N.  Y.  123 

(19  Am.  Rep.  252),  (reversing 

61  Barb.  310);  s,  C.  84  N.  Y. 

55G  (affirmiug   19   Hun,  518), 
V.  Reynolds,  1  Sm.  Lead. 


Cas.  503,  -        -        -        . 

Mitchell  V.  D'Armoud,  CO  La. 

Ann.  Part  I.  396,  - 
V.  Colman,  2  Jac.  &  Walk. 

266, 

V,  Dall,  2  Ear.  &  Gill,  159,      152, 

153,  1022 


305 
676 

453 

988 


Mitchell  V.  Dobson,  7  Ircd.  (N. 
Ca.)  Eq.  34,     -        -        -      530,  881 

V.    Gieenwald,   43  Miss. 

167,         -        -        .        .   1085,  1103 

V.  O'Nealo,  4  Nev.  504,     -    3,  13 

V.  Read,  19  Hun.  418  (afTd. 

in  84  N.  Y.  556),     -        -       305,  603 

V.    Read,    84   N.    Y.   556 

(alT'g  19  Hun,  418),         -      3a5,  761 

V.  Rich,  1  Ala.  228,  -    380,  1091 

V.  Sell  man,  5  Md.  376,     410,  411 

V.  Wells,  54  Mich.  127,     875,  881 

V.  Williams,  4  Hill,  13,     -      389 

Mitchum  v.    Bank    of    Ky.    9 

Dana,  106,  -  -  -  612,  618 
Mittnight  v.  Smith,   17  N.  J. 

Eq.  259.  -        -    824,  929,   1109 

Mix  V.  Muzzy,   28  Conn.  186,      319, 

357 
V.  Shattuck,  50  Vt.  421  (28 

Am.  Rep.  511),  -  453,  704,  705 
Moale  V.  Hollius.  11  Gill  &  J. 

11,  -  -  -  156,  157,  443,  535 
Mobley    v.    Lonbat,    7    How. 

(Miss.)  318,  ....  1103 
Moddewell  v.  Keevcr,  8  Watts 

&S.  63,  -  -  -  -  583,  1169 
JMode  V.  Penland,  93  N.  Ca.  292,  471 
Modisett  v,  Lindley,  2  Blackf. 

119,  ....       416,  419 

M(;fl"at  V.  Farquharson,  2  Bro. 

C.  C.  333,  -  -  -  -  269 
V.    McKissick,    8   Baxter, 

517,  -        -        -       195,   199,  203 

Moflatt  V.  Thomson,  5  Rich.  (S. 

Ca.)   Eq.    155   (57  Am.  Dec. 

737),  -  736,  738,  821,  917,  920 
Mogford  V.  Courteuay,   45   L. 

T.  303 ;  29  W.  R.  804,  -  -  666 
Mohawk    Nat.    Bank    v.    Van 

Slyck,  29  Hun,  188,  -  26,  443 
Mohawk  &  Hudson   R,  R.  v. 

Niles,  3  Hill  (N.  Y.),  162,  43,  66 
Moies  V.  O'Neill,  23  N.  J.  Eq. 

207,  ...        -       593,  999 

Moist's  Adra'rs'  Appeal,  74  Pa. 

St.  106,   ...        -       384,  680 


CXXVlll 


MOL.] 


TABLE  OF  CASES. 


[Moo. 


Molea  V.  Orr,  44  Ark.  486,        -   1024, 

10:29 
Moley  V.  Brine,  120  Mass.  324,     144, 

181,  815 
Moline    Wagon    Co.  v.   Rum- 
mell,  2  McCrary,  807 ;  12  Fed. 
Rep.  658 ;  14  id.  155  (reversed 
by     Huiskanip     v.     Molino 
Wagon  Co.    121   U.  S.  210),     105, 
547,  559,  5C0,  5G1,  607 
Moline  Water  Power  &  Mfg. 
Co.  V.  Webster,  2G  111.  233,     825, 

828 
Moll  wo,  March   &  Co.  v.  The 
Court  of  Wards,  L.  R.  4  P.  C. 
419,         ....  23,  47 

Monroe  v.  Conner,  15  Me.  178 
(32  Am.  Dec.  148),         -        -      825 

V.  Greeuhoe,  54  Mich,  9,        29 

V.  Hamilton,  47  Ala.  217,       919 

V.  Hamilton,  60  Ala.  226,     577, 

585,  586 
Montague  v,  Hayes,  10  Gray, 
609,         ...        -       302,  781 

V.  Reakert,  6  Bush,  393,  -      694 

V.  Weil,  30  La.  Ann.  50,   -    1091 

Montgomery,    Re,     3    Bankr. 
Reg.  429,         -        -        -        -      825 

V.  Boone,   2  B.  Mon.  244,     213, 

414 

V.  Elliott,  6  Ala.  701,        -        72 

V.  Montgomery,  Rich.  Eq. 

Cas.  (S.  Ca.)  64,      -        -       949,  950 

V.  Sprankle,    31  Ind.  113,       139 

Montjoys  v.  Holden,  Litt.  Sel. 
Cas.  447  (13  Am.  Dec.  331),     275, 

276,  403, 

Montefiori  v.   Lloyd,  15  C.  B. 

N.  S.  203.        -        -        -        - 

Montross    v.   Mabie,    30    Fed. 

Rep.  234,        -        .        -        - 

Montz  V.    Morris,    89  Pa.  St. 

392, 

Moody  V.  Downs,  63  N.  H.  50, 

V.  King,  3  B.  &  C.  558,     532,  846 

V.   Payne,   2  Johns.   Ch. 

548,         ...  -    1109 


Moody  V.  Rathburn,  7  Minn.  89,     257, 

286,  583,  585 
V.  Thomas,  1  Disney,  294,      664 


655 

265 

1080 
733 


Mooe   V.   Story,  8  Dana,   226,     788, 

978,  983,987 

Moor  V.  Boyd.  15  Up.  Can.  C. 
P.  513  (doubted  in  s.  C.  23 
Up.  Can.  Q.  B.  459),      -       416,  419 

Moore's  Appeal,  34  Pa.  St.  411,      749 

Moore,  Ex  parte,  2  Gl.  &  J. 

166,         ...        -       760,845 

V.  Ay  res,  5  Sm.  «fe  Mar. 

310, 194 

V.  Bare,  11  Iowa,  198,       -      181 

V.  Brink,  4  Hun,  403;  6 

N.  Y.  Supreme  Ct.  22,  -         72,  750 

V.  Burns,  60  Ala.  2G9,        -     1018 

V.  Curry,  106  Mass.  409,      59,  70 

V.  Davis,  11  Ch.  D.  261,     17,   26, 

38 

V.  Gano,  13  Oh.  300,        395,  901 

V.  Huntington,  7  Hun,  425,      43, 

257 

V.  Huntington,    17  Wall. 

417, 931 

V.  Knott,  12  Oregon,  260,      435, 

544, 586 

V.  Knott,  14  Oregon,  35,  -      518 

V.  Lackman,  53  Mo.  323,  -     533, 

526,  537,  694 

V.  Otis,  20  Mo.  153,    -        -    1119 

V.  Pennell,  53  Me.  163,      -  1105, 

1108 

V,  Riddell,  11  Grant's  Ch. 

(Up.  Can.)  69,         ...      490 

V.  Sample,  3  Ala.  319,       -  1105, 

1109 

V.  Smith,  19  Ala.  774,         43,  61 

V.  Stevens,  60  Miss.  809,  -     331, 

418,  438,  451 

V.  Trieber,  31  Ark.  113,     -      215 

V.  Walton,  9  Bankr.  Reg. 

402,         -        -        .        -    23,  47,  88 

V.  Wheeler,  10  W.  Va.  35,     810, 

812,  957,  971 
Moorehead  v.  Adams  (Neb.), 
26  N.  W.  Rep.  242,        -       -      563 


CXXIS 


Moo] 


TABLE  OF  CASES. 


[MoR. 


Moorehead  v.  Gilmore,  77  Pa. 

St.  118  (18  Am.  Rop.  435),     -     341, 
852,  355,  358,  372 
Mooreraan   v.    Graffenread,    2 

Mill(.S.  Ca.),  195,  -  -  -  11G4 
Morau  v.  Le  Blanc,  6  La.  Ann. 

113, 8()6 

V.  Palmer,  13  Mich.  367,  -     283, 

292,  299 

V.  Prather,  23  Wall.  492,       365 

Morans  v.  Armstrong,   Arms. 

M.  &  O.  Irish  N.  P.  Rep.  25,  315 
Moraviav.Levy,  2T.  R.  483,  n.,  858 
More  V.  Bonnet,  40  Cal.  251,     -      676 

V.  Rand,  60  N.  Y.  208,     595,  897 

Moreau  v.  SafTarans,  3  Sneed, 

595,  -        .        -        -      293,  296 

Morehead  v.  Wriston,  73  N.  Ca. 

398,  -        -        -        503,  510,  511 

Moreton  v.  Hardern,  4  B.  &  C. 

223;  6  Dow.  &  Ry.  275, 
Morey  v.  Grant,  48  Mich.  326, 


Morgan  v.  Adams,  37  Vt.  233, 
V.  Marquis,  9  Exch.  145, 


402 
995, 
1005 
964, 
967 
583, 
610,  755 

-V.  Morgan,  68  Ala.  80,   -   741 

V.  Nunes,  54  Miss.  308,     -      874 

V.  Olvey,  53  Itid.  6,    281,283,285 

V.  Pierce,  59  Miss.  210,     -      374 

V.  Richardson,  16  Mo.  409 

(57  Am.  Dec.  235),  -        -       377,  380 

V.  Schuyler,  79  N.  Y.  490 

(35  Am.  Rep.  543).  -       008,  671 

V.  Scott,   Minor  (Ala.),  81 

(12  Am.  Dec.  35),  -        -        -      422 

V.  Skidmore,  55  Barb.  263,      471 

V.  Stearns,  41  Vt.  398,       -        29 

V.  Tar  bell,  28  Vt.  498,       499,  501 

Morganstern  v.  Thrift,  66  Cal. 

577. 274 

Moriarty  v.   Bailey,  46  Conn. 

.592,  ....   1047,  1048 

Morin  v.  Martin,  25  Mo.  360,    -      852 
Morisou  V.  Moat,  9  Hare,  241,       258, 

261,  669 


Moritz   V.    Peebles,    4    E.    D. 

Snuth,  135,  -  -  -  793,  889 
Morley,  Ex.  parte,  L.  R.  8  Ch. 

App.  1026,       -        -        -       253,  563 

V.  Newman,  5  D.  «&  R.  317,      231 

Morrell  v.  Trenton   Mut.  L.  & 

F.  Ins.  Co.  10  Cush.  282  (57 

Am.  Dec.  92), 


457 

179 

88 


44,  - 

—  V. 

—  V. 

V. 

V. 


61, 


V. 

V 

428, 

-  V. 


Morrill  v.  Sanford,  49  Me.  565, 

V.  Spurr,  143  Mass.  257,    - 

Morris  v.  Allen,  14  N.    J.   Eq. 

-  763,  785 
Barrett,  3  Y.  &  J.  384,  205 
Col  man,  18  Ves.  437,  -  988 
Harrison,  Colles.  157,  -  954 
Hillery,  7  How.  (Miss.) 

900,  902 
Husson,  4  Sandf.  93,     -      400 
Jones,  4  Harr.  (Del.) 

.  420,  421 
Litchfield,  14  111.  App. 

64 

V.  Marqueze,  74  Ga.  86,    -     347, 

507.  510,  514,  515 

V.  Morris,  4  Gratt.  293,     -     569, 

736,  825,  841,  845 

V.  Moss,  25  L.  J.  C!i.  194,       659 

V.  Peckham,  51  Conn.  128,     208, 

572,  1011,  1012 
Morris  Run  Coal  Co.  v.  Barclay 

Coal  Co.  68  Pa.  St.  173. 
Morrissey  v.  Schindler,  18  Neb. 

672, 

Morrison's  Appeal,  93  Pa.  St. 


83, 


112 


1094 


326, 507 

Morrison  v.  Blodgett,  8  N.  H. 

238  (29  Am.  Dec.  G53),  -      510,  515, 
1105,  1100,  nil,  1113 

V.  Cole,  30  Mich.  102,        -  41,  43 

V.  Kramer,  58  Ind.  38,     761,  780 

V.  Meudenhall,   18-  Minn. 

232,  ...        -       283,  292 

V.  Perry,  11  Hun,  33,      534,  607, 

694 

V.  Smith,  81  111.  221, 

V.  Stockwf'll,  9  Dana,  172, 


V.  Winn ,  Hardin (Ky.),  480, 


763 

882 

722 


cxxx 


MOR.] 


TABLE  OF  CASES. 


[MUN. 


Morrow  v.  Riley,  15  Ala.  710,  849, 

8G0 

Morse,  Re,  13  Bankr.  Reg.  376,  825 

V.  Bellows,   7  N.    H.  549 

(28  Am.  Dec.  372),       381,  415,  G81, 

687,  690,  1035 

V.  Carpenter,  19  Vt.  613,  -  296 

V.  Chase,  4  Watts,  456,     -  1022 

V.  Gleasou,   64  N.  Y.  204 


(aff.  2  Huu,  31 ;  4  Thomp.  & 

C.  274),  -  -  -  -  582,  570 
V.  Green,    13  N.  H.  32  (38 

Am.  Dec.  471),  -  -  -  543 
V.  Hagenah  (Wis.),  32  N. 

W.  Rep.  634,  -        -       321,  370 

V.  Hall,  109  Mass.  409,     198,  071 

V.  Hutcliins,  102  Mass.  439,       897 

V.  Richmond,   97   HI.    303 

(affg.  6  111.  App.  160),  26,  204,  299, 
406,  438,  441,  444,  445 
V.  Richmond,   6  111.  App. 

166  (affd.  97  111.  303),  -  299,  406 
Mortley  v.    Flanagan,    38  Oh. 

St.  401,  -  -  -  -  560,  1133 
Morton  v.    Ostrom,    33  Barb. 

256,  ....       261,  263 

Moseley  v.  Ames,  5  Allen,  163,  341 
Mosely  v.  Garrett,  1  J.  J.  Mar. 

(Ky.)  212,  -  ...  183 
Moses  V.  Bagley,  55  Ga.  283,     -      709 

V.  Moses,  50  Ga.  9,    -       743,  745 

Mosgrove   v.    Golden,  101  Pa. 

St.  605, 1024 

Moss  V.  Jerome,  10  Bosw.  220,        57 

V.  McCall,  75  111.  190,        -      786 

V.  Riddle,  5  Cranch,  351,  -      375 

Mossop  V.   Mason,    18  Grant's 

Ch.   (Up.   Can.)  453  (affg.  16 

id.  303,  and  17  id.  360),  664,  669 
Mosteller  v,  Bost,  7   Ired.    (N. 

Ca)Eq.  39,  -  -  -  823,  829 
Motley  V.  Jones,    3  Ired.    Eq. 

144, 44 

Moulston  V.  Wire,  1  Dow.  &  L. 

527, 1085 

Mount    V.    Chapman,    9    Cal. 

394, 858 


Mt.  Pleasant  Branch  of  State 
Bank  v.  McLeran,  26  Iowa, 
206, 397 

Mountstephen  v.  Brooke,  1  B. 

&  Aid.  214,  -  ...  724 
Mourain   v.    Delamre,     4    La. 

Ann.  78,  -        -        787,789,955 

Mousseau  v.  Thebens,   19  La. 

Ann.  516,  -  -  -  78,  79,  507 
Mowatt  V.   Howland,    3   Day, 

353, 618 

Mowbray  v.  Lawrence,  13  Abb. 

Pr.  317;  22  How.  Pr.  107,  -  1109 
Moyuahan    v,     Hanaford,     43 

Mich.  329,  -  -  -  349.  358 
Mudd  V.  Bast,  34  Mo.  465,  570,  1018 
Mudge  V.  Parker,  139  Mass.  153,  605 
Mueller  v.  Wiebracht,  47  Mo. 

468, 510 

Muir  V.  Leitch,  7  Barb.  341,  -  825 
Mulhall   V.    Cheatham    1    Mo. 

App.  476,  -        -        17,  28,  849 

Mulholland  v.  Rapp,  50  Mo.  42,  922 
Mullany  v.  Keenan,   10  Iowa, 

224, 869 

MuUendore  v.    Scott,    45   Ind. 

113,  ....  G36,  879 
Mumford  v,  MuiTay,  6  Johns. 

Ch.  1, 766 

V.  Nicoll,  4  Johns.  Ch.  522 


(rev.  in  part  in  20  Johns.  611), 
—  V.  Nicoll,    20   Johns.    611 


917 


(reversing  s.  C.  4  Johns.  Ch. 

522),         ...  70,  821,  917 

Munn,  In  re,  3  Biss.  442,        107,  156, 

196,  443 
Munroe  v.  Cooper,  5  Pick.  412,  362 
Munson  v.  Hall,  10  Grant's  Ch. 

(Up.  Can.)  61,         ...        47 

V.  Sears,  12  Iowa,  162,      -        63 

V.    Wickwire,     21    Conn. 

513,  -        -        -        330,  331,  701 

Munster  v.  Cox,  11  Q.  B.  D.  435 

(affd.  10  App.  Cas.  680),  -  1060 
V.  Cox,  L.  R.  10  App.  Cas. 

680  (aff.  11  Q.  B.  D.  435),  1060. 

1063,  1088 


ox  XXI 


MUB.] 


TABLE  OF  CASES. 


[Nal. 


Murchison  v.  Warren,  50  Tex. 
27, 542 

Murdock  v.    Martin,   20  Miss. 

(12Sm.  &M.)GG1,  -        -      8G1 

V.  Melilhop,  26  Iowa,  213,      629, 

C30 
Murpliy  V.   Abrams,    50    Ala. 

293,  ....       294,  300 

■ V.  Camden,  18  Mo.  IIG,  352 

V.  Crafts,  13  La.  Ann.  519,     7G1, 

7G2 

V.  Whitlow,  1  Ariz.  340,        1154 

V,  Yeonaans,  29  Up.   Can. 

C.  P.  421,  -  -  -  086,687 
Murray  v.   Bogart,    14  Johns. 

318  (7  Am.  Dec.  466),  -       1G4,  1G5, 

852,  858 
V.  Elston,  24  N.  J.  Eq.  310 

(affd.  id.  589),  -  -  -  958 
V.  Jolmson,  1  Head  (Tenn. ), 

353, 780 

V.  Mumford,    6  Cow.    441 

(rev.  Anthon's  N.  P.  294),     G85,  713, 

715,  722 
V.  Murray,  5  Johns.    Cli. 

60,  -  -  -  -  753,  754,  1026 
V.  Pinkett,  12   CI.  &  Fin. 

764     (s.     C.    as    Pinkett    v. 

Wright,  2  Hare,  120),     -        -      187 

V.  Somerville,  2  Camp.  99,      439 

V.  Stevens,  Rich.  Eq.  Cas. 

(S.  Ca.)  205,  -  -  -  -  61 
Murrell  v.  Murrell,  33  La.  Ann. 

1233,  ...  13,  384,  792 
Murrott  v.  Murphy,  11  Bankr. 

Keg.  131,  ....  297 
Murrill  v.  Neill,  8  How.  (U.  S.) 

414,  -        -        569, 825, 830,  832 

Murtagh  v.  Costello,  7  Irish  L. 

R.  428, 297 

Muse  V.  Donelson,  2  Humph. 

(Tenn.)    IGG    (36  Am.    Dec. 

309), 704 

Musier  v.  Trumpbour,  5  Wend, 

274,         ...  61,  67,  8G5 

Musselman's  Appeal,  63  Pa.  St. 

81,  ....       (3.09,  661 


Musser  v.  Brink,  68  Mo.  242; 

80  id.  350,       -        -        -     29,  37,  61 
Mussey  v.  Holt,  4  Foster  (24  N. 

H.),  248  (55  Am.  Dec.  234),     299, 

401 
Musson  V.  May,  3  Ves.  &  B. 

194, 637 

Mut.  Ben.  L.  Ins.  Co.  v.  Hill- 
yard,  87  N.  J.  L.  444,     -        -      583 
Mutual  L.  Ins.  Co.  v.  Sturges, 

33  N.  J.  Eq.  328  (rev.  32  id. 

678), 718 

Mutual  Nat'l  Bank  v.  Richard- 
son, 33  La.  Ann.  1312,  -      363 
Mut.  Sav.  Institution  V.  Enslin, 

37  Mo.  453,      -        -       690,  713,  731 
Muzzy  v.,Whitney,  10  .Joiins. 

22G,  -        -        -        -    41.  43,  47 

Myatts  V.  Bell,  41  Ala.  223,     349,  526 

095,  704 
My  cock  V.  Beatson,  13  Ch.  D. 

384,         -        -        -        595.  805, 808 
Myers     v.    Bennett,     3      Lea 

(Tenn.),  184,  -        -       810,  978 

V.  Edge,  7  T.  R.  254,         -      649 

V.  Gilbert,  18  Ala.  467,      -      462 

V.  Huggins,  1  Strob.  L.  473,      C95 

V.  Kalamazoo  Buggy  Co. 

54  Mich.  215,  -        -       669,  674 
V.  Moulton  (Cal.),  12  Pac. 

Rep.  505,        ....      404 

V.  Smith,  15  Iowa,  181,     -      635 

V.  Smith,  29  Oh.  St.  120,    1103, 

1113 

V.  Standart,  11  Oh.  St.  29,     696, 

700,  701 

V.  Winn,  16  111.  135,        543,  805 

Mygatt    V.   McCIure,   1    Head 

(Tenn.),  495,     -        -        -     339,  403 
Mynderse  v.   Snook,  53  Barb. 

234;  1  Lans.  488,      -  1017,  1021 

Myrick  v.  Dame,  9  Cush.  248,     853, 

1035,  1037 

N. 

Naglee  v.  Minturn,  8  Cal.  540,       935 
Nail  V.  Mclntyre,  31  Ala.  532,     1040 


CX.\X11 


Nal.] 


Nalle  V.  Gates,  20  Tex.  315,     • 

Nance  v.  Pope,  1  Stew.  (Ala.) 
230  (id.  3o4),  -        -        -        -      527 

Nanson  v.  Gordon,  1  App,  Gas, 

195  (affJ.    10   Ch.  App.  IGO),      SSP), 

844 

Napier  v.  Catron,  2  Humph. 
534,  -        -        -        -       293,  416 

V.  McLcod,  9  Wend,  130,     181, 

G84 

Napoleon  v.  State,  3  Tex.  App. 
532,         ...        -        83,  277 

Nash  V.  Brophy,  13  Met.   476,     1125 

Nashville    &    Chat.  R.    R.   v. 

Spraybeny,  9  Heisk.  853,     -        63 

Nasou,  Ex  parte,  70  Me.  363,     453, 

841 

National  Bank  v.  Bank  of  Com- 
merce. 94  111.  371,  825,  841,  8S0 


TABLE  OF  CASES. 
700 


[New. 


V.  Gushing,  53  Vt.  321, 


843 


V.  Ingraham,  58  Barb.  290,     34S, 

443 

V.  Mapes,  85  111.  67,  -        -      543 

V.  Norton,  1  Hill,  573,     607,  613, 

625,  694,  695 
V.   Sprague,  20  N,  J.  Eq. 

13  (reversed  in  part,  31  id. 

530),        138,  281,  535,  585,  566,  568, 

1130 

V,   Thomas,  47  N.  Y.  15,     439, 

446 
National     Bk.     of    Bait.      v. 

Sackett,  2  Daly,  395,  -  -  340 
Natl.    Bk.    of   Commonwealth 

V.  Law,  127  Mass.  72,  -  349,  358 
V.  Temple,  39  How,    Pr. 

433,  -  -  -  -  468,  1130 
Natl.  Bk.   of  Newburg  v.  Big- 

ler,  83  N.  Y.  51  (aff.  18  Hun, 

400),  .  -  -  -  603,  655 
National     Security     Bank    v. 

McDonald.  127  Mass.  83,  358,  362 
Nat'l  Union  Bk.  v.  Landon,  66 

Barb.  189   (alld.    iu    part,  45 

N,  Y.  410),  -  -  -  323,  361 
National  Bk.  of  Watertown  v. 

Landon,  45  N.  Y.  410,    -         4,  5,  7 


National  Ins.  Go,  v.  Bowman, 

60  JIo.  253,  -  -  -  -  1068 
Nat'l  Shoe  &  Leather  Bk.  v. 

Hcrz,  89  N.  Y.  639,        -        -      616 
Natusch  V.  Irving,  2  Cooper's 
Ch.    temp.   Cottenham,  35S,     431. 

435,  938 
Nave  V.  Sturges,  5   Mo.  App. 

557,  -        -        -  55,  598.  603 

Naylor  v.  Sidener,  100  Ind.  179,     991, 

998 
Neale  v.    Turton,  4  Biug.  149,      8S0, 

883 
Near  v.  Lowe,  49  Mich.  483,     -     933, 

950 
Nebraska  R.  R.  Co.  v.  Colt,  8 

Neb.  251,  -  -  -  -  457 
Neel  V.  Keel,  4  T.  B.  Mon.  162,  899 
Neely  v.  Morris,  2  Head,  505,  1067 
Negus,  Ex  parte,  7  Wend.  499,  638 
Nehrboss  v.  Bliss,  88  N.  Y.  6U0,     714, 

732,  74a 
Neil  V.  Greenleaf,  26  Oh.  St. 

567,  -  -  -  850,  893,  956 
Neilson   v.  Mossend  Iron   Co. 

L.  R.  11  App.  Cas.  293,  -      218 

Nelson  v.  Hayner,  66  111,   487,       744 

V.  Healey,  63  Ind.  194,     -      453 

V.  Plill,  5  How.  137,  -        -      749 

V.  Lloyd,  9  Watts,  22,     -    1095, 

1151 

V.  Neely,  63  Ind.  194,        -      200 

V.  Tenuey,  36  Hun,    327,      726, 

733 

V.  Wheelock,  46  111.  25,     -      406 

Nerot  V.  Bernand,  4  Russ.  247 ; 

2  Bli.  N.  S.  215,  -  -  -  794 
Neudecker    v.      Kohlberg,     3 

Daly,  407,  -  -  810,  813,  813 
Nevius  V.  Townsend,  6  Conn. 

5, 882,  884 

New  V.  Wright,  44  Miss.   203,      988. 

993 
Newberger  v.    Fields,    23   Mo. 

App.  631,  -  -  -  29,  37,  257 
Newbigging  v.  Adam,   34  Ch. 

D.  583,     -        -        -        595,  805,  897 


CXXXUl 


New.] 


TABLE  OF  CASES. 


[NIC. 


Newbrau  v.  Snider,  1  W.  Va. 

153,         -        -  35,  258,  259,  8J9 

Newcomet    v.    Brotzman,    69 

Pa.  St.  185,  -  -  -  -  62:i 
Newell  V.    Desmond,    63  Cal. 

243, 517 

V.  Humphrey,  37  Vt.  265,     766, 

773,  795,  923 

V.  Smith,  23  Ga.  170,       328,  3-14 

V.  Towusend,  6  Sim,  419,       720 

Newen    v.    Wetten,    31   Beav. 

315,  -  -  .  .  957,907 
Newhall   v.    Buckingham,    14 

111.  405,  -  340,  928,  1105,  1100,  1111 
New  Haven  Co.  Bk.  v.  Mitcli- 

ell,  15  Conn.  206,  389,  653,  C98,  70S 
Newland  v.  Champion,  I  Ves. 

Sr.  105, 925 

V.   Tate,   3  lied.    Eq.  (N. 

Ca.)  221),  -  161,  166,  168,  770 
Newley  v.  Oregon  Co.  1  Dead)^, 

609, 674 

Newling  v.  Dobell,  38  L.  J.  Ch. 

Ill;  19L.  T.  408,  -  -  -  677 
Newlou  V.   Heaton,   42   Iowa, 

593,  -        -  173,  1059,  1091,  1092 

Newman  v.  Bagley,   16  Pick. 

570, 569 

V.  Bean,  21  N.  H.  93,       43,  1106 

V.  MuComas,  43  Md.  10,    -      703 

V.  Morris,  52  Miss.  4U2,     136,  137 

V.   Kichardson,  4  Woods, 


C.  C.  81 ;  9  Fed.  Rep.  808,     - 
—  V.  Springfield  F.  &  M.  Ins. 


347 


Co.  17  Minn.  123,  -  -  -  333 
Newmarch  v.   Clay,    14  East, 

239,  .        -        -        .       497,  608 

New   Maiket  Bank  v.  Locke, 

89Ind.  428,  -  -  -  -  825 
Newsome   v.    Coles,   3   Camp. 

617,  -  -  -  97,  100,  009 
Newsoni  v.  McLendon,   0  Ga. 

27, 848 

Newton   v.    Doran,    3   Grant's 

Ch.  (Up.  Can.)  353,  282,  301,  591 
V.    Doran,    1   Grant's  Ch. 

(Up.  Can.)  590,      -       -       -      591 


N.  Y.  &  Ala.  Contracting  Co. 

V,  Meyer,  51  Ala.  325,  -  -  899 
V.  Selma  Sav.  Bk.  51  Ala. 

305  (23  Am.  Rep.  552),  -  -  400 
N.  Y.  Dry  Dock  Co.  v.  Tread- 

well,  19  Wend.  525,  -  -  1053 
N.    Y.    Firemen's   Ins.    Co.   v. 

Bennett,  5  Conn.  571  (13  Am. 

Dec.  109),  -  323,  319,  354,  363 
New  York  Iron  Mine  v.    Ne- 

gaunee,  39  Mich.  644,    -        -  4 

New  York  &  Sliaron  Canal  Co. 

V.  Fulton  Bank,  7  Wend.  413,   ' 

414,   " 183 

Niagara  Co.  Nat'l  Bk.  v.  Lord, 

33  Hun.  557,  -  -  -  -  183 
Nichels  v.  Mooring,  10  Fla.  760,     681, 

958 
Nichol  V.  Stewart,  80  Ark.  613,      226, 

230,  254,  276,  '374,  766,  780,  821,  824, 

917,  927 
Nicholaus  v.  Thielges,  50  Wis. 

491,  .        -        -        .       43,  1150 

Nicliolls  V.  Diamond,  9  Exch. 

154,  -        -        -        .       349,  441 

V.  Dowding,  1  Stark.  81,  -      331 

Nichols   V.   Anguera,   3    Miles 

(Pa.),  290,        -        ...      535 

V.  Cheairs,  4  Sneed,   229,     322, 

323,  523,  524,  525,  537 
V.    English,    3    Brewster 

(Pa.),  260,  -  -  -  446,  448 
V.  Hughes,  2  Bail.  (S.  Ca.) 

L.  109, 318 

V.  James,  130  Mass.  5S9,  -      109 

V.  Prince,  8  Allen,  404,     -     635, 

638,  643 

V.  Sober,  38  Mich.  678,     353,  354 

V.  White,  85  N.  Y.  531,     700, 1151 


Nicholson  v.  Janeway,   16  N. 
J.  Eq.  285,      -        -        -       309,  958 

V.  Moog,  65  Ala.  471,        96,  613, 

618 

V.  Ricketts,  3  E.  &  E.  534,     154, 

489 
Nicklaus  v.  Dahn,  63  Ind.  87,     723, 

724,  1170 


ex  XXIV 


NIC] 


Nicklaus  v.  Roach,  3  Ind.  78, 
NicoU   V.  Muuiford,  4  Johns. 

Ch.  532 ;  20  Johns.  Gil,  -       823 

Niday  v.  Harvey,  9  GratL  454,      4'20, 

422 
Niehoff  V.  Dudley,  40  111.  406,     23,  47. 

48 
Nightingale  V.  Chaffee,  11  R.  I. 

6::9  (23  Am.  Rep.  531),  -        -      527 

V.  Scaunell,  G  Cal.  506,     -   1027, 

1162 
Niles  V.   Williams,    24   Couu. 

27d,         ..,.-.      007 
Niiiis,  Re,  16  Blatchf.   439  (re- 
versing s.  c.  18  Baukr.  Reg. 

91,  10  Ben.  53),       -        -        -      829 
V.    Bigelow,      44    N.     H. 

876, 858 

V.  Nims,  20  Fla.  204,  -      966 

V.    Nims    (Fla.    1887',    1 

South.  Rep.  527,     812,  917.  936,  968 
Nisbet  V.  Nash,  52  Cal.  540,     163,  910 

V.  Patton,   4  Rawie,   120 

(26  Am.  Dec.  122),  -       3S9,  474 

Niven     v.      Spickerman,      12 

Johns.  401,       -     72,  849,  1024,  1028 
Nixon  V.  Downey,  42  Iowa.  78,     1087 

V.  Nash,  12  Oh.  St.  647,    -     584, 

928,  1101,  1105,  1109,  1111 
Noakes  v.  Barlow,  26  L.  T.  N. 

S.  36, 

Noble  V.  McCIintock,  2  Watts 

&S.  152,         .        -        .        . 

V.  Metcalf,  20  Mo.   App. 


TABLE  OF  CASES. 
535 


[Not. 


360, 


29 
347 
430 

780 


Noel  V.  Bowman,  2  Litt.  (Ky.) 
46, 

Nolan    V.    Lovelock,    1    Mon- 
tana, 224,         323,  325,  334,  431,  432 

Noonan    v.    McNab,    30    Wis. 
277, 243 

V.  Orton,  31  Wis.  265,     243,  383, 

1027 

V.  Orton,  32  Wis.  106,       -     1032 

Norcross,  Matter  of,    1  N.  Y. 
Leg.  Obs.  100,        -        -        -      583 

V.  Clark,  15  Me.  80,  -        -    1072 


Norfolk,  Ex  parte,  19  Ves.  455,     155, 

840 
Norman  v.  Conn,  20  Kan.  159,      812 

V.  Huddlestou,  64  111.  11,       629 

V,    Norman,     2     Yeates 

(Penn.),  154,  -        -        -        -     1169 
Norment  v.    Hull,    1  Humph. 

320, 

Norris  v.    Howard,   41   Iowa, 

508, 

V.  McCanna,  29  Fed.  Rep. 


757, 

—  V.  Rogers,  107  111.  148,      - 

—  V.  Vernon,  8  Rich.  L.  13, 


43 

667 

138 
796 
190 

North  V.   BIoss,  30  N.  Y.  374,     150, 

153,  1052 

V.  Mudge,   13  Iowa,   593,     377, 

379,  535 
North  Pennsylvania  Coal  Co.'s 

Appeal,  45  Pa.  St.  181,  -      438 

North  River  Bank  v.  Stewart, 
4  Bradf.  (N.  Y.)  254;  4  Abb. 
Pr.  408,  -        -        -        -      825,  832 
Northern     Bank     of    Ky.    v. 

Keizer,  2  Duv.  169,         -      827,  834 
Nurtlieni  Ins.  Co.  v.  Potter,  63 

Cal.  157,  -        -        -      386,  387 

Northern  R'y  Co.  v.  Patton,  15 

iTp.  Can.  C.  P.  332,         -        -        43 
Northup   V.  McGill,   27   Mich. 

234,  -        .        -        .       181,  552 

Northrup    v.   Phillips,    99  111. 

449,  -        -        115,  121,  12S,  2G1 

Norton  v.   Richards,  13  Gray, 

15, 534 

V.  Seymour,  3  C.   B.  792, 

16  L.  J.   C.  P.  100;  11   Jur. 

312,         -        -        -     200,  453,  1147 

V.  Thacher,   8   Neb.    186,      199, 

426,   1068 
Norway  v.  Rowe,  19  Ves.  144,     314, 

992,  1002 
Norwich  Yarn    Co.,  In  re,  22 

Beav.  113,       -        -        -        -      785 
Nott  V.  Douming,  6  La.  680,     612, 

694 
V.  Douming,  10  La.  546,  -      398 


exxxv 


Not.] 


TABLE  OF  CASES. 


[Ond. 


Nottiflge  V.  Pi-ichard,  2  CI.  & 

F.  379  (all.  S  Bli.  N.  R.  493),      383, 

681 
No  well  V.  Nowell,  L.  R.  7  Eq. 

538, 813 

Noyes  v.  Crawley,  10  Ch.   D. 

31, 942 

V,  Cushman,  25  Vt.   390,       61, 

81,  1151,  1154 
V.  New  Haven,  etc.  R.  R. 

30  Conn.  1,      -      325,326,381,383 

V.  Sawyer,  3  Vt.  160,        -    1016 

Nugent  V.  Locke,  4  Cal.  318,  -  70 
Nunnely  v.  Doherty,  1  Yerg. 

(Tenn.),  20,  -  -  -  414,  420 
Nussbauuier  v.  Becker,  87  111. 

281  (29  Am.  Rep.  53),  -  -  608 
Nutt  V.   Hunt,  4  Sm.   &  Mar. 

(Miss.)  702,  -  399,  450,  lOol,  1068 
Nutting  V.  Aslicral'c,  101  Muss. 

300,  ...  -  256,  825 
V.  Colt,  7  N.  J.  Eq.  539,     43,  103 

o. 

Oakey  v.  Rabb,  1  Freem.  (Miss.) 

Ch.  540,  ...  -  825,  832 
Oakford  v.  European  and  Am. 

Steam  Siiipping  Co.  1  Hen. 

&  Mil.  182,  -  -  -  533,  709 
Oiikeley  v.  Pasliollor,  4  Clark 

&  Fin.  207;  10  Bligh.  N.   R. 

548,  ....      520,  533 

Oakley  v.  Aspinwall,  2  Sandf. 

7,     1 332 

Oakraan  v.  Dorchester  Mut.  F. 

Ins.  Co.  98  Mass.  57,  -  -  722 
Ober  V.  Indianapolis  &  St.  L. 

R.  R.  13  Mo.  App.  81,  -  635,  713 
O'Brien  v.   Cook,   Irish  L.  R. 

5  Eq.  51,  .        .        -        .      990 

V.  Hanley,  80  111.  278,       -      978 

O' Bryan  v.  Gibbons,  2  Md.  Ch. 

9, 995,  999 

O'Conner  v.  Stark,  2  Cal.  153,  972 
O'Connor     v.     Naughton,    13 

Grant's  Ch.  (Up.  Can.)  428,    -      309 


Odiorne  v.  Bacon,  6  Cush.  185,     1032 

V.  Maxcy,  15  Mass.  39,    331,  319, 

424 

V.  Woodman,  39  N.  H.  541,       850 

O'Donnell  v.  Battle  House  Co. 

67  Ala.  90  (42  Am.  Rep.  99),        59 

Offutt  V.  Scott,  47  Ala.  104,     281,  284, 

295,  297,  538,  707,  724 

Ogden  V.  Arnot,  29  Hun,  146,     583, 

754,  755,  931 

V.  Astor,  4  Sandf.  311,    743,  794, 

799 
Ogdensburgh  R.   R.  v.  Frost, 

21  Barb.  541,  ....  310 
Ogilby,  Ex  parte,  3  Ves.  &  B. 

133;  2  Rose,  177,  -  -  -  845 
Ogle,  Ex  parte,  Mont.  3'0,  -  835 
O'Gorman  v.  Fink,  57  "Wis,  649 

(40  Am,  Rep,  58),  -  -  -  1131 
Olcott  V,  Wing,  4  McLean,  15,     815, 

974 
Oliphant  v,  Mathews,  16  Barb, 

60S, 443 

Oliver  V.  Forrester,  96  111.  315,  707. 
711,  728,  729,  730 

V.  Gray,  4  Ark.  425,       17,  57,  63 

V.    Hamilton,    2    Anstx\ 

453, 993 

V.  Liverpool  &  Loudon  L. 

&  F.  Ins.  Co.  100  Mass.  531,  170 
V.  Lynn,  130  Mass.  143,    -       176 


Olleman   v.    Reagan,    28    Ind. 

109,  -        -        -       730,  832,  845 

01  instead  v.  Hill,  2  Ark.  346,  -        43 

V,  Webster,  8  N.  Y,  413,     535, 

530 
Ohnsted  v.   Ilotailing,  1   Hill, 

317, 480 

O'Lone   v.    O'Loue,   2   Grant's 

Ch.  (Up.  Can.)  125,        245,  779,  788 

917,  918,  987 
Olsou   V.    Morrison,    29   Midi, 

395,  -        -        -       551.  636.  637 

O'Mealey  v,  Wilson,    1  Camp. 

482, 110 

Onderdonk  v.    Hutchinson,   6 

N.  J.  Eq.  632  (rev.  id.  277),  -      767 


CXXXVl 


O'Ne.] 


TABLE  OF  CASES. 


[Pah, 


O'Neil  V.  Salmon,  25  How,  Pr, 

24G,  ....  56G,  569 
O'Neill  V.  Brown,  Gl  Tex.  34,  -      851 

V,  Duff,  U  Phila.  244,       -      774 

Onondago    Co.    Bank    v.     De 

Puy,  17  Wend.  47,  -  348,  370 
Ontario  Bank  v.  Hennessey,  48 

N.  Y.  545,  -  -  -  191,  445 
Ontario  Salt  Co.  v.  Merchants' 

Salt  Co.  18  Grant's  Cii.  (Up. 

Can.)  540,  .  .  .  8G,  134 
Oppenheinier  v.  Clemmons,  18 

Fed.  Rep.  886,  -  .  -  43,  49 
Oran  v.  Rothermel,  98  Pa.  St. 

300, 719 

Ord  V.  Portal,  3  Camp.  239,  -  10G7 
Oregon    Steam    Nav.    Co.    v. 

Winsor,  20  Wall.  04,  .  .  676 
O'Reilly  v.  Brady,  28  Ala.  530,     769, 

773,  970 
Ormsbee  v.  Davis,  5  R.  I.  443,     3oS, 

339,  991,  996 
Orr  V.  How,  55  Mo.  328,  -  -  29G 
Orrick  v,  Valiey,  49  Ux  428.  -  733 
Osborn  v.    McBride,  3   Sawy. 

590;  16  Bankr.  Reg.  22,      189,  1109 

V.  Osborn,  36  Mich.  48,     -     141, 

884,  504,  510,  511 
Osborne  v.  Bai'ge,  29  Fed.  Rep. 

725,  -  -  339.  403,  405,  406 
V.  Brennan,  2  Nott  &  McC. 

427;  (10  Am.  Dec.  614),  .     1149 

V.  Haiper,  5  East,  225,     895,  896 

V.  Stone,  30  Minn.  25,       -     349, 

362,  369 
■ V.    Thompson,   35  Minn. 

229, 349 

Osbrej  v,  Reimer,  51  N.  Y.  630 

(affg.  49  Barb.  265),  29,  43,  47,  922 
Osburn  v.  Farr,  43  Mich.  134,  -  148 
Odmeut   V,  McElrath,  68   Cal. 

466,  .        -        -        771,  773,  791 

Ostrom  V.  Jacobs, 9  Met.  (Mass.) 

454,  -       199,  439,  448,  700,  1153 

Otis  V.  Adams,  41  Me.  258,       -     393, 

10S3 
Ovens  V.  Bull,  1  Ont.  App.  63,     1106 


Over  V.  Hetherington,  06  Ind. 

365, 629 

Overholt's  Appeal,  13  Pa.    St. 

222,  51  Am.  Dec.  598,    -       .     292, 

1114 
Overton  v.  Tozer,  7  Watts,  331,  378 
Owen,  Ex  parte,   4  De  G.    & 

Sm.  351,        .        .        .        263,  263 

,  Ex  parte,  13  Q.  B.  D.  113,     754, 

102o 
V,  Van  Uster.  20  L.  J.   C. 

P.  Gl;  IOC.  B.  318,  .  349,441 
Owens  V.  Davis,  15  La.  Ann. 

22, 70 

V.  Mackall,  33  Md.  383,     -  53,  54 

V.  Miller,  29  Md.  144,         -      544 

Owings  V.  Low,  5  Gill    &  J. 

134, 700 

V.  Trotter,  1  Bibb,  157,     -      383 

Owston  V.  Ogle,  13  East,  538,  -  886 
Ozeas  V.  Johnson,  4   Dall.  434 

(S.  C.  below,  1  Bin.  191),      735,  849, 

862,  865 

P. 

Packer  v.  Noble,   103  Pa.   St. 

18S, 1171 

Packing  Provision  Co.  v.  Cas- 
ing Co.  34  Kan.  340,      -        -     1085 
Page  V.  Brant,  18  111.  37,      625,  1049, 

1050,  1053 

V.  Carpenter,  10  N.  H.  77,     453, 

453a,  547.  1106 

V.  Cox,  10  Hare,  163,        51.  219, 

249,  C03 

V.  Morse,  128  Mass.  99,     -      144 

V.  Thomas,  43  Oh.  St.  38,       185, 

281,  291 

V.  Vankirk,  6  Phila.  264; 

S,  C.  1  Brews.  282,  -        .       233,  234 

V.  Wolcott,  15  Gray,  536,       707, 

710 


Paige  V.  Paige  (Iowa),  32  N.  W. 

Rep.  300,         ....      2i)0 
Pahlman  v.  Graves,  2G  111.  405,     825. 

832 
cxxxvii 


Pah.] 


TABLE  OF  CASES. 


[Par. 


Pahlman  v.  Taylor,  75  III.  G29,     319. 

341,  364,  370,  452,  4o3 

Paine  v.  Dwiuel,  53  Me.  52,    -      439 

V.  Moore,  G  Ala.  129,        -      8G8 

V.  Paine,  15  Graj',  299.     -      9G8 

V.  Tliacber,  25  Wend.  450,     770, 

775.  854,  885 
Painter  v.  Painter,  68  Cal.  395,     630. 

735 
Palmer  v,  Bagg,  56  N.  Y.  523,        655 

V.  Dodg(>,  4  Oh.  St.  21  (62 

Am.  Dec.  271),       -       618,  693,  695 

V.  Elliot,  1  Cliff.  63.  -      445 

V.  Mitchell,  2  Myl.  &  K. 

672,  -        .        .        .       4S5,  605 

V.   Meyers.  43  Barb.  509 ; 

29  How.  Pr.  8,        -        -       338,  340 

—  V.  Pinkliam,  37  Me.  252,  -        91 

V.  Purdy.  83  N.  Y.  144,     -      534 

V.  Sawyer,  114  Mass.  1,     -      709 

V.  Scott,  68  Ala.  380,       328,  341, 

483,  1073 

V.  Stephens,  1  Den.  471,         193, 

199,  203,  444 

V.  Tyler,  15  Minn.  106,     86,  822. 

932 
Pannell  v.  Phillips,  55  Ga.  618,  441 
Paradise  v.  Gersou,  32  La.  Ann. 

532, 365 

Parch  en  v.  Anderson,  5  Mon- 
tana, 438,  -  -  -  23,  47, 64 
Pardee  v.   Haynes,   10  Wend. 

681,  ....  3-0,  1086 
Pardridge  v.  Ryan,  14  111.  App. 

598. 1135 

Parham  Sewing  Mach.  Co.  v. 

Block,  113  Mass.  194,  526,  655,  694 
Pariente  v.  Lubbock,  8  De  G. 

M.  &  G.  5,  -  -  -  -  651 
Paris,  etc.  Rond  Co.  v.  Weeks, 

11  Up.  Can.  Q.B.  56,  -  -  67 
Parish    v.    Lewis,     1    Freem. 

(Miss.)  Ch.  299,  -  559.  560,  824 
Parker,  Ex  parte,  2  M.  D.  &  D. 

511,  -  -  -  503,511,516 
,    Succession    of,    17    La. 

Ann.  28,         -        -  942 


Parker  v.  Bowles,  57  N.  H.  491.     282, 

295,  301 

V.  Burgess,  5  R.  I.  277,     352,  355 

V.  Canfield,  37  Conn.  250 

(9  Am.  Rep.  317),       30,  47,  49,  156, 

157,  607 

V.   Cousins,  2  Gratt.  372 

(44  Am.  Dec.  388),  -       526,  695 

V.  Danforth,  16  Mass.  299,     1025, 

108G,  1127,  1128 

V.  Fergus,  43  111.  437,  43,  45, 

46,  99 
{'.  Gossage,  2  Cr.  M.  &  R. 


617, 

—  V.  Hills,  5  Jur.  N.  S.  609 ; 


238 


7  id.  833,         ....      203 

—  V.  Jackson,  16  Barb.  33,      349, 

750,  1094 

—  V.  Jonte,  15  La,  Ann.  290,       978 

—  V.    Maconiber,    18    Pick. 

505,  -        -        -        090,  091, 095 


V.  Merrill,  6  Me.  41, 

V.  Merritt,  105  111.  293,      - 

V.  Morrell,  2  Ph.  453, 

V.    Muggeridge,    2   Story, 


701 
554 
331 


334,  337,  ....      754 

—  V.  Pistor,  3  B.  &  P.  2i-8.   -    1109 

—  V.  Ramsbottom,  3  B.  &  C. 

257;  5  Dow.  &  Ry.  138,       560.  846 

G08 

1103 

643, 

055 

Parkhurst     v.      Kinsman,      1 

Blatchf.  488.  -        -        -         69,  585 

V.  Muir,  7  N.  J.  Eq.  307,  -      996 

V.  Muir,  7  N.  J.  Eq.  555,  -      957 


V.  Wooten,  35  Ala.  242,    - 

V.  Wright,  66  Me.  392,      - 

Parkes  v.  Parker,  57  Mich.  56, 


902 

551 

1100 


Parkinson  v.  Hanburj',  L.  R.  3 

IL  L.  1,  .... 

Parks  V.  Comstock,  59  Barb.  16, 

V.  Mosher,  71  Me.  304,      - 

Parmalee    v.    Wiggenhorn,    5 

Neb.  322,        -        503,  507,  510,  511 
Parnu'lce  v.  Lawrence,  44  111. 

405, 386 

Paruell  v.  Robinson,  58  Ga.  26,     228, 

306 
cxxxviii 


Par.] 


TABLE  OF  CASES. 


[Pea. 


Parr,  Ex  parte,  1  Rose,  76,  -  843 
Parry  v.  Hencierson,  6  Blackf. 

72, 1074 

Parsliall   v.    Fisher,   43  Mich. 

529,  -        -        -      101,  138,  1158 

Parsons  v.  Hayward,  31  Beav. 

199  (affd.  in  4  DeG.  F.  &  J. 

474),  -  -  -  216,  575,  794 
V.  Hayward,  4  DeG.  F.  & 

J.  474, 575 

V.  Tilhnan,  95  lud.  453,    -      884 

Partridge  v.  Wells,  30  N.  J.  Eq. 

176,  -  -  -  544,  790,  947 
Patch  V.  Wheatland,  8  Allen, 

103,  -        200,  401,  40G,  407,  453 

Pate  V.  Bacon,  6   Munf.  (Va.) 

219,  ....   1049,  1065 

Paterson  v.  Maughan,  39  Up. 

Can.  Q.  B.  371,       -        -        -      403 

V.  Zachariah,  1  Stark,  71,       694 

Paton  V.  Baker,  63  Iowa,  704,       283 

V.  Wright,   15  How.  Pr. 

481, 338 

Patridge     v.     Kingman,     130 

Mass.  476,  -  -  -  43,  104 
Pattee  v.  Gilmore,    18  N.   H. 

460  (45  Am.  Dec.  385),  -  -  701 
Patten  v.  Cunningham,  03  Tex. 

666, 1086 

V.  Gurney,  17  Mass.  183,     1034 

V.  Kavanagh,  1 1  Daly,  348,      418 

V.  Whitehead,  13  Rich.  L. 

156, 1072 

Patterson's  Appeal    (Supreme 
Ct.    Pa.    1883),    13    Weekly 
Notes,  154,     -        -        -       112,  128 
Patterson  v.  Blake,  13  Ind.  436,      976 

V.  Brewster,  4  Edw.  Ch. 

352,         .        -        -        -       151,  205 

V.  Chalmers,    7  B.  Mon. 


595,         .        -        -        - 

V.  Lilly,  90  N.  Ca.  83, 

V.  Martin,  6  Ired.  L.  Ill, 

V.  Seaton,  70  Iowa,  689,  - 

V.  Silliman,  28  Pa.  St.  304, 


70,  724 

949,  950 

629. 

630 

566 

241, 

243 


Patterson  v.  Trumbull,  40  Ga. 

104, 

V.  Ware,  10  Ala.  444, 


-    1113 
800,  910 


Pattison  v.  Blanchard,  6  Barb. 


537, 


V.  Blanchard,  5  N.  Y.  186, 

Patton  V.    Calhoun,   4  Gratt. 
138,         -        -        - 


849 
66 

772 

886 


Paul  V.  Edwards,  1  Mo.  30,      ■ 
Pawsey  v,  Armstrong,  18  Ch. 

D.  698,  -  -  -  -  28,  060 
Payne   v.    Freer,  91   N.  Y.  43 

(43  Am.   Rep.    640;  aff'g  25 

Hun,  124),  -  -  -  784,  851 
V.  Gardiner,  29  N.  Y.  146 

(aff.  S.  C.   as  Payne  v.  Slate, 

39  Barb.  634),         -        -        -      693 

V.  Hornby,  25  Beav.  280,  -      553 

V.  James,  36  La.  Ann.  476,       457 

V.  Matthews,  6  Paige,  19,       845 

V.  O'Shea,  84  Mo.  129,      -     1079 

V.  Slate,  39  Barb.  634  (affd. 

as  Payne  v.  Gardiner,  29  N. 

Y.  146),  -  -  -  693,  703,  704 
V.  Tliompson,  44  Oh.  St. 

193, 139 

Peabody  v.   County  Conim'rs, 

10  Gray,  97,  -  -  -  -  175 
Peace,  Re,  13  Bankr.  Reg.  168,  833 
Peacey  v.  Peacey,  27  Ala.  683.     337, 

338,  636,  879 
Peacock,  Ex  parte,  2  Gl.  &  J. 

27, 842 

V.  Cummings,  46  Pa.  St. 


434  (5  Phi  la.  253),  - 

—  V.  Peacock,  2  Camp.  45, 

—  V.  Peacock,  16  Ves.  49, 

—  V.  Stott,  90  N.  Ca.  518, 


433 

181. 

257 

679, 

1003 

1170 

560 

833 

Pearce  v.  Chamberlain,  3  Ves. 

Sr.  33,     -        -        -        -       158,  581 

V.  Cooke,  13  R.  L  184,     747,  750, 

826 
V.  Ham,  113  TJ.  S.  585,     573,  796 


Peake,  Ex  parte,  1  Mad.  340, 
,  Ex  parte,  3  Rose,  54, 


CXXXIX 


Pea.] 


TABLE  OF  CASES. 


[Peo. 


Pearce  v.  Hewitt,  31  Beav,  22,       805 

V.  Lindsay,  3  De  G.  J.  & 

Sm.  139,  -        ...      575 

V.  Madison  &  Indianapolis 

R.  R.  21  How.  441,        -        -      133 

V.  Pearce,  77  111.  284,      259,  788, 

813,  983,  983 

V.  Sliorter,  50  Ala.  318,     -     456, 

1103,  1119 

V.  Wilkins,  2  N.  Y.  4G9,  -     3i6, 

38G 
Pearl  v.  Harris,  121  Mass.  390,       233 
Pearpoint  v.  Graham,  4  Wash. 
C.  C.  232,       338,  339,  403,  405,  577, 

583 
Pearson  v.  Concord  R.  R.  Co. 
(N.  H.)  13  Am.  &  Eng.  R.  R. 

Cas.  94, 133 

V.  Keedy,   6  B.  Mon.  128 

(43  Am.  Dec.  IGO),        742,  746,  929 

V.  Pearson,  27  Ch.  D.  145,     661, 

G6G 

V.  Post,  2  Dakota,  220,    -     197, 

401,  418 

V.   Skelton,  1  M.  &  W. 

504, 852 

Pease  v.  Cole,  53  Conn,  53,    329,  341, 

344,  345,  371 
V.  Hewitt,  31  Beav.  22,     808,  809 

V.  Hirst,  10  B.  &  C.  122; 

5  M.  &  R.  88,  -  651,  1016,  1017 
V,  McClelland,  2  Bond,  42,       393 

V.  Morgan,  7  Johns.  4G8,     1068 

V.  Rush,  2  Minn.  107,        -    1017 

Peck  V.  Boggcss,  2  111.  281,  -  960 
V.  Fisher,  7  Cush.  386,      -  1102, 

1107,  1114,  1115 

V.  Parch  en,  52  Iowa,  46,  -     1056 

V.  Schultze,  1  Holmes,  C. 

C.  28,  -  -  -  -  1107,  1109 
V.  Wakely,  1  McCord,  Ch. 

43, 881 

Pecker  v.  Hall,  14  Allen,  532,  612 
Peckham  lion  Co.  v.  Harper, 

41  Oh.  St.  100,  -  -  468,  474 
Pecks  V.  Baruum,  24  Vt.  75,    -     173, 

1127,  1128 


Pecot  V.  Armelin,  21  La.  Ann. 

C67,  ....       287,  303 

Peel  V.  Bryson,  72  Ga.  331,       -    1085 

V.  Ringgold,  6  Ark.  546.  -     1026 

Peele,  Ex  parte,  6  Ves.  Jr.  C03,     503, 

511,  512,  1016 
Pegg  V.  Plank,  3  Up.  Can.  C.  P. 

396, 1079 

Peine  v.  Weber,  47  111.  41,    292,  416, 

417 
Peirce  v.  Tobey,  5  Met.  168,  -  704 
Peirse  v.  Bowles,  1  Stark.  323,  406 
Peltz  V.  Eichele,  62  Mo.  171,  -  676 
Pelzer  V.  Campbell,  15  S.  Ca. 

581,         ....       420,  431 
Pemberton   v.  Oakes,  4  Russ. 

154,         -        -        499,  649,  650,  656 
Pence  v.  McPhersou,  30   Ind. 

68, 

Pendleton  v.  Phelps,    4  Day, 

481, 

V.  Wambersie,  4  Cranch, 


183 
747 
927 
895 


73, 

Penguet  v.   McKenzie,  6  Up 

Can.  C.  P.  ;  08,      -        -        • 
Pcnn  V.  Kearny,  21  La.  Ann. 

21, 446 

V.  Stone,  10  Ala.  209,        -      869 

V,  Whitehead,    17  Gratt. 

503,  ....      136,  142 

Penniraan  v.   Munson,   26  Vt. 

164. 69 

Pennington   v.    Bell,   4  Sneed 

(Tenn.),  200,  -  -  -  5C9,  825 
Pennoyer  v.    David,    8    Mich. 

407, 701 

Pennsylvania      Ins.     Co.      v. 

Murphj',  5  Minn.  36,  -  -  409 
Penny  v.  Black,  9  Bosw.  310,  264 
V.    Martin,   4  Johns.    Ch. 

5G6, 535 

Pennybacker  v.  Leary,  Ql  Iowa, 

220,  -        290,  302,  823,  974,  975 

Pennyman  v.  Jones,  58  N.  H. 

G47.  -----      932 

People  V.  Judges  of  Duchess,  5 

Cow.  34, 414 


0x1 


Peo.] 


TABLE  OF  CASES. 


[Pfe, 


People  V.  Lott,  36  III.  447,        -      740 

V.  White,  11  111.  S41,       715,  740. 

741,  743,  1000 
People's  Bank  v.    Shryock,  48 
Md.  427  (30  Am.  Dec.  470),    -  1103, 

1111 
Pepper  v.  Labrot,  8  Fed.  Rep. 

29. 674 

Percifull  v.  Piatt,  36  Ark.  456,     293, 

296 
Perens  v.  Johnson,  3  Sra.  &  G. 

419,  ...        -       311,  788 

Perkins  v.  Iloyt,  35  Mich.  506,       336 

V.    Perkins,  3  Gratt.  364,         86 

V.  Walker,  16  Vt.   240,     -     1121 

V.  Young,   16  Gray,  389,     880, 

8S1 
Perlberg  v.  Gorham,    10  Cal. 

120,  .  -  .  .  S83,  415 
Perley    v.    Brown,    13    N.  H. 

493,  ...  .849 

Perrin  v.  Kerne,  19  Me.  355  (36 

Am.  Dec.  159),  -  -  526,  695 
Perrine  v.  Hankinson,!!  N.  J. 

L.  181, 45 

Perring  v.  Hone,  4  Bing.  28  (3 

C.  &  P.  401),     72,  74,  346,  851,  878, 

900 
Perrott  v.  Bryant,  2  Young  & 

C.  Ex.  61,  -  -  -  -  59 
Perry  v.  Butt,  14  Ga.  699,        33,  981 

V.  Hale,  143  Mass.  540,    595,  897 

V.  Holloway,  6  La.  Ann. 

265, 180 

V.  Randolph,  6  Sm.  &  Mar. 

335,  -      323,  323,  459,  1150,  1163 

V.  Spencer,  23  Mich.  89,   -      642 

Person    v.    Carter,    3    Murph. 

(N.  Ca.)321,    ....      416 

V.  Wilson,  25  Minn.   189,      262 

Fsrsonette  v.  Pry  me,  34  N.  J. 

Eq.  26,  -  -  -  -  301,  907 
Persse  &  Brooks  Paper  Works 

V.   Willett,    1   Robt.    131;  19 

Abb.  Pr.  410,  -        -        -      560 

Perzell  v.  Shook,  53  N.  Y.  Su- 
perior Ct.  501,        -        -        -      250 


Peteetv.  Crawford.  51  Miss.  43,      959 
Peters  v.  Anderson,  5  Taunt. 

596, 489 

V.  Davis.  7  Mass.  257,        -      722 

V.    McWiliiams,    78    Va. 

567,  ....     507,  570,  763 

V.  Sanford,  1  Den.  224,     -      535 

Peterson  v.  Roach,  32  Oh.  St. 

374  (30  Am.  Rep.  G07),         446,  450, 

451 
V.  Humphrey,  4  Abb.  Pr. 

391,  ....  609,  673 
V.  State,  33  Tex.  477,        -      488 


Petit  V.  Chevelier,  13  N.  J.  Eq. 

181, 991 

Petrie  v.  Han  way,  3  T.  R.  418,      112, 

127 
V.  Lament,  1  Car.  &  M. 

93, 467 

V.  Newell,  13  111.  647,        -    10G8 

Pettee  v.  Appletou,  114  Mass. 

114,  -  -  .  .  33,  47 
V.  Orser,  6  Bosw.  123;  18 

How.  Pr.  413,  -   ■    338.  340,  403 

Pettes  V.  Spalding.  21  Vt.  00,  1125 
Pettingill  v.   Jones,   28    Kan. 

749, SG5 

Pettis  V.  Atkins,  GO  111.  451,      72,  74, 

1049,  1050 
V.  Bloomer,  21  How.  Pr. 

317,  ....       416,  419 

Petty  V.  Hannum,  2  Humph. 

103, 395 

Pettyt   V.    Janesou,    6    Madd. 

146, 245 

Petzer  v.   Campbell,  15  S.  Ca. 

581, 423 

Peyton  v.   Lewis,   12  B.  Mon. 

356,         -        -        -        533,  634,  635 

V.   Stratton,  7  Gratt.  380,     384, 

693 
Pfau  V.  Lorain,  1  Cinti.  Supe- 
rior Ct.  73,  -  -  -  -  1071 
Pf effer  v.  Steiner,  27  Mich.  537,     719, 


Pfeifer    v.    Chamberlain,     53 
Miss.  89,         -       -       -       -    1135 
cxU 


Pfe.] 


TABLE  OF  CASES. 


[Pie. 


Pfoiffer  V.  Maltby,  38  Tex.  523 

(see  Pfeuffer  v.  Maltby,  54  id. 

454), 127 

Pfeuffer  v.  Mallby,  54  Tex.  454,      114, 

127 
Pfirrman  v.  Koch,  1  Cincinnati 

Superior  Ct.  Rep.  4G0,  559,  560 

Pfister  V.  Wade,  C9  Cal.  133,    -    1007 
Pliaup    V.    Stratton,    9  Gratt. 

G15, 1073 

Pliclan  V.    Hutchison,      Phil. 

(N.  Ca.)Eq.  11(5,  -  -  7G4,  765 
Phelps,  Re,  17  Bankr.  Reg.  144,  640 
V.  Brewer,  9  Cush.  390  (57 

Am  Dec.  56),  -  1088,  1089,  1090 

. V.   Lyle,  10  A.  &  E.  113,     1017 

V.  McNeely,  06  Mo.  554  (37 

Am.  Rep.  378),  -  -  563,  563 
Phelps    Mfg.  Co.    V.   Eng.    19 

Conn.  58,  ...  - 
Philippi  V.  Philippi,  61  Ala.  41, 
Philips  V.  Crammond,  3  Wash. 

C.  C.  441,         ...        - 

V.  Henry.  2  Head,  133.     - 

V.  Pliilips,  8  Hare.  381,      - 

V.  Samuel,  76  Mo.  657,     - 

V.  Turner,  2  Dev.   &  Bat. 

Eq.  133,  -         770,  968,  978,  979 

Pliillips  V.  Ames,  5  Allen,  183,      562, 

566 

V.    Blatchford,  137  Mass. 

510,       51,  52,  73,  187,  003,  853,  905, 

910 

V.  Clagett,  11  M.  &  W.  84,       383 

V.  Cook,  24  Wend.  389,     -   1101, 

1105.  1109,  1111,  1112 

V.  Jones,  20  Mo.  67,        -      549 

V.  Lockliart,  1  Ala.  251,  -      852 

V.  Nash,  47  Ga.  218,  -       86,  152, 

156,  157,  333,  459,  597,  608 

V.  Penny  wit,  1  Ark.  59,  -       70, 

148,  1023,  1033 

V.  Phillips,  1  Myl.    &  K. 

649, 285 

V.  Phillips,  49  111.  437,       -  3 

V.  Purington,  15  Me.  425,        70, 


ior)9 

952 

544 

1168 

726 

55 


330,  331,  1143 


Phillips  V.  Reeder,  18  N.  J.  Eq. 

95,  -  -  305,  596,  6S9,  797 
V.  Reeder,  18  N.  J.  Eq.  614,      085 

V.   Trezevant,  67   N.   Ca. 

370, 994 

Philson  V.  Bampfield,  1  Brev. 

(S.  Ca.)303,  -  -  -  -  538 
Fhipps  V.  Sedgwick,  95  U.  S.  3,  564 
Phoanixins.  Co.  v.  Moog(Ala.), 

1  South.  Rep.  108,  -     725,  1029 

Piano  Co.  v.  Bernard,  2  Lea, 

358,  503,  507,  508,  510,  511,  513, 

544.  978,  979 
Piatt  V.  Oliver,   8  McLean,  37 

(affd.  3  How.  333),        113,  241,  293, 

£01,  303 
Pickels  V.  McPherson,  59  Miss. 

216,  -        -        -        317,  383,  416 

Pickett  V.  Cloud,  1  Bailey  (S. 

Ca.),  363,  -  -  -  -  1166 
Pico  V.  Cuj-as,  47  Cal.  174,  209,  855 
Pier  V.  Duff,  63  Pa.  St.  59,  -  547 
Pierce  v.  Alspaugh,  83  N.  Ca. 

258.  ....  507,  508 
V.    Camei'on,    7   Rich.  (S. 

Ca.)  L.  114,     -        -       420,  421,  524 

V.  Covert,  39  Wis.  253,     -      976 

V.  Daniels,  25  Vt.  624,     300,  311, 

761,  770,  773 

V.  Fuller,  8  Mass.  223,       -      678 

V.  Jackson,  21  Cal.  636,     -      303 

V.  Jackson,   6  Mass.  243,      475, 

1112,  1114,  1115 

V.  Jarnagin,  57  Mass.  107,     318, 

320,  322,  401 

V.  Kearney,  5  Plill,  83,    537,  1168 

V.  Kingsbury,  03  Mo.  259,     1106 

V.   McClellan,  93  111.  245,      942, 

945 

-    1151 


—  V.    McCoimell,   7   Blackf 
170,  ...        - 

—  V.  Nashua  F.   Ins.  Co.  50 

N.  H.  297  (9  Am.  Rep.  235),    272, 273 

—  V.  Pass,  1  Porter  (Ala.),  232,      4l0 

—  V.  Plumb,  74  111.  320,        -      636 

—  V.  Scott,  37  Ark.  308,     313,  770, 

9o2 


cxlii 


Pie.] 


TABLE  OF  CASES, 


[Plo 


Pierce     v.     Shippee,     90    III. 

371, 28 

V.  Thompson,  6  Pick.  193,     894, 

S9S 
V.  Tiernan,  10  Gill  &  J. 

853,  -        -        -        .       821,917 
V.  Trigg,  10  Leigh  (Va.), 

406,         -        -        281,  293,  294,  974 

V.Whitley,    39  Ala.   172,     1136 

V.  Wood,*3  Foster  (23  N. 

H.),  519,  -        -        -       465,  701 

Piercy  v.  Fynney,  L.  R.  12  Eq. 

C9,  -        -        -     383,  425,  1039 

Pierson  v.  Hooker,  3  Johns.  68 

(3  Am.  Dec.  467),  -        -       382,  415 
V.  Steinmyer,  4  Rich.  L. 

309,         .        .        -        -  16,  47 

Pigott  V.  Bagley,  McCl.   &  Y. 

569,  -        -        -        -        51,  249 

Pike  V.  Bacou,  21  Me.  280  (38 

Am.  Dec.  259),       -        -       410,  419 

V.  Bateman,  1  Iowa,  309,         72 

V.  Douglass,  28  Ark.  59,  -        78 

V.  Hart,  30  La.  Ann.  Part 

II,  868, 848 

Pilcher,  Succession  of,  1  South. 

Rep.  929,         -        -        -        -      172 
Pillans  V.  Harkness  (H.  of  L. 

1713),  Collos,  442,  -        -       595,805 
Pilliug  V.  Pilling,  3  De  G.  J.  & 

Sm.  162,         -        -        211,  263,  783 
Pillabury  v.  Pillsbury,  20  N.  H. 

90, 876 

Pirn  V.  Harris,  Irish  Rep.    10 

Eq.  412, 782 

Pinckney  v,  Keyler,  4  E.  D.    - 

Smith,  469,     -        -        -        45,  375 

V.  Wallace,  1  Abb.  Pr.  82,     722, 

731 
Pine  V.  Ormsbee,  2  Abb.  Pr.  (N. 

S.)375,    -        -        -        -       571,794 
Pingree  v.  Coffin,  12  Gray,  288, 

314, 711 

Pinkerton,   Ex  parte,    6  Ves. 

814,  n., 834 

V.  Ross,  33  Up.  Can.  Q.  B. 

508,         .        -        -         82,  129,  327 


Pinkett  v.  Wright,  2  Hare,  120 

(S.  C.  as  Murray  v.  Pinkett, 

12  CI.  &  Fin.  764),  -        -      187 

Piukney  v.    Hall,  Ld.  Raym. 

175 ;  1  Salk.  126,  -  -  -  841 
Pinschower  v.  Hanks,  18  Nev. 

99, 1052,  1053 

Piper  V.  Smith,  1  Head,  93,     297,  770, 

772 
Pirtle  V.  Penn,  3  Dana,  247  (28 

Am.  Dec.  70),  181,  182,  910,  991 
Pitcher   V,   Barrows,   17  Pick. 

361  (28  Am.  Dec.  306),         621,  622, 

882,  884,  904 
Pitkin  V.   Pitkin,  7  Conn.  307 

(18  Am.  Dec.  Ill),         55,  580,  598, 

599,  600 

V.  Roby,  43  N.  H.  138,       -    1029 

Pitt  V.  Cholmondeley,  2  Ves. 

Sr.  565, 964 

Pittman  v.    Planters'     Bk.    1 

How.  (Miss.)  527,  -  -  -  1085 
V.  Robicheau,  14  La.  Ann. 

108, 1113 

Pitts  V.  Brewster,  4  Edw.  Ch. 

322,  -       ■-        -        -        -      150 

V.  Hall,  3  Blatchf.  201,     -        69 

Place  V.  Sedgwick,  95  U.  S.  3,       566 


V.  Sweetzer,  16  Oh.  142,  -  1109, 

1111 
Planters'  &  Mer.  Bk.  v.  Willis, 

5  Ala.  770,  -  -  -  194,  401 
Planters'    &    Miners'    Bk.    v. 

Padgett,  69  Ga.  159,  -  -  4 
Piatt  V.  Halen,  23  Wend.  456,  1022 
V.  Piatt,  61  Barb.   52;  11 

Abb.  Pr.  (N.  S.)  110,  -  -  715 
Pleasants  v.  Meng,  1  Dall.  380,     338, 

583 
Plews  V.  Baker,  L.   R.  16  Eq. 

564,  571,  -        -        -        -      233 

Ploss  V.  Thomas,  6  Mo.  App. 

157,  .        -        .        .       139,  140 

Plowden,  Ex  parte,  2  Dea.  456 ; 

3  Mont.  &  A.  402,  -        -      760 

Plowman    v.    Riddle,    7    Ala. 

775, 1071 


K 


cxliii 


Plu.] 


TABLE  OF  CASES, 


[POS. 


Plumer  v.  Gregory,  L.    R.  18 

Eq.  621,  -        -        371,  474,  477 

V.  Lord,  5  Allen,  460,       136,  139 

V.  Lord,  7  Allen,  481,        33,  139 

Plummer,  Re,  1  Ph.  56,    -        -      842 

V.  Trost,  81  Mo.  425,  61,  140 

Plunkett  V.  Dillon,  4  Del.  Ch. 

198, 47,49 

Poclielu    V.    Kemper,    14    La. 

Ann.  308,        .        -        -        -  4 

Pogson  V.  Owen,  3  Desaus.  31,  1027 
Poillon  V.  Secor,  61  N.  Y.  456,    92,  93, 

445 
Poindexter  v.  Waddy,  6  Munf. 

(Va.)  418  (8  Am.   Dec.  749),     347, 

507 
Pointon  v.  Pointon,   L,   R.   12 

Eq.  547,  ...        -      925 

Polk  V.    Buchanan,    5    Sneed 

(Tenn.),  721,  -        -        -    23,  43,  47 

V.  Oliver,  56  Miss.  566,      97,  618 

Pollard    V.    Brady,    48  N.   Y. 

Superior  Ct.  476,    -        -        -      198 

V.  Stanton,  5  Ala.  451,     453,  852 

V.  Stanton,  7  Ala.  761,      -  17,  56 

Pollock  V.  Glazier,  20  Ind.  262,    1068, 

1094 

V.  McClurken,  42  111.  370,     1164 

V.  Williams,  42  Miss.  88,     323, 

446,  523 
Pollexfen  v.  Sibson,  16  Q.  B.  D. 

792,  -        -        -        -   1059,  1062 

Pomeroy  v.    Benton,    57    Mo. 

531  (14  Am.  Law  Reg.  N.  S. 

306),        -        -        309,  790,  958,  901 

V.  Benton,  77  Mo.  64,      309,  789, 

961,  983 

V.  Coons,  20  Mo.  597,        -      615 

V.  Sigerson,  22  Mo.  177,    -        00 

Pond  V.  Clark,  24  Conn.  370,  -     182, 

963,  978,  979 

V.  Cummins,  50  Conn.  372,        43 

V.  Kimball,  101  Mass.  105,     1131 

Pool  V.  Delaney,  11  Mo.  570,    -       850 

V.  Perdue,  44  Ga.  454,       -      8G0 

Poole  V.  Fisher,  62  111.  181,  -  91,  94 
V.  Gist,  4  McCord,  L.  259,       709 


Poole   V.  Hintrager,  60  Iowa, 

180,        -        -        -       504,  510,  1094 

V.  Lewis,  75  N.  Ca.  417,    445,  451 

V.  Seney,  66  Iowa,  502,     -      561 


Pooley  V.  Driver,  5  Ch.  D.  458,  1,17, 
18,  35,  49,  50,  173 
V.   Whitmore,  10  Heisk. 

(Tenn.)    629    (27    Am.    Rep. 

733),  -  -  329,  343,  349,  304 
Pope  V.  Bateman,  1  Iowa,  309,  1028 
V.  Cole,  55  N.  Y.   124  (14 

Am.  Rep.  198),       -        -       747,  750 

V.  Hays,  19  Tex,  375,       639,  640 

V.  Nance,    1  Stew,   (Ala.) 

354 ;  id.  220,    -        -        -        -      527 

V.  Randolph,  13  Ala.  214,       858 

V.  Risley,  23  Mo.  185,       621,  700 

• V,  Salsman,  35  Mo.  362,    -      939 


Popper  V,  Scheider,  7  Abb.  Pr, 

(N.  S.)  56 ;  38  How.  Pr.  34,    -    1003 
Porche    v.    Le   Blanc,    12  La. 

Ann,  778,         .        -        -        -     1103 

Porter  v.  Graves.  101  U.  S.  171,     1154 

Port  Darlington  Harbor  Co.  v. 

Squair,    18    Up.   Can.  Q.  B 

533,  ...        -       523,  524 

Porter  v.  Curry,  50  111.  319,     367,  429 

V.  Ewing,  24  111,  617,        -        43 

V,  Gorman,  65  Ga.  11,       -      664 

V.    Gunnison,    2  Grant's 

Cas.  (Pa.)  297,        -        -       347,  363 

V.  McClure,  15  Wend.  187,        64 

V.  Parmley,  52  N.  Y.  185,       179 

V.  Taylor,  6  Moo.  &  S,  156,     381, 

684 
V,  Vance,  14  Lea,  627,       -      468 

V.  Wheeler,  37  Vt.  281,     766, 

899 

V,  White,  39  Md.  613,     329,  361, 

364 
Porthouse  v.  Parker,  1  Camp. 

83, 397,  399 

Portland  Bank  v,  Gershom,  11 

Me,  196,  -        -        882,884,900 

Portsmouth  v.  Donaldson,  32 

Pa,  St.  202,  -  274,  275,  455,  973 
Posey  V.  Bullitt,  1  Blackf.  99,      414 


cxliv 


Pos.] 


Post  V.  Kimbeily,  9  Johns.  470,  71 
Postlewait  v.  Howes,  3  Iowa, 

365, 749 

Pote  V.  Phillips,   5  Cranch,  C. 

C.  154, 858 

Pott  V.  EytoD,  3  C.  B.  32,  43,  91,  95 
Potter  V.  Dillon,  7  Mo.  323  (37 

Am.  Dec.  185),       -        -        -      847 

V.  Greene,  9  Gray,  309,     -        96 

V.  Jackson,  13  Ch.  D.  845,       987 

V.  Moses,  1  R.  I.  430,        43,  334, 

572,  791,  794 
Potts  V.  Blackwell,  3  Jones  (N. 

Ca.),  Eq.  449,  -  -  560,  565 
V.  Blackwell,  4  Jones,  Eq. 

58, 560,  565 

Powell,  Succession  of,  14  La. 

Ann.  425,  -  -  -  -  849 
V.  Graves,  9  La.  Ann.  435,       880 

V.  Hopson,  13  La.  Ann. 

626, 598 

V.  Maguire,  43  Cal.  11,     78,  113, 

870 

V.  Messer,  18  Tex.  401,     361,362, 

1046 

V.  North,   3  Ind.  392  (56 

Am.  Dec.  513),       -        -       604,  727 

V.  Robinson,  58  Ga.  26,     -      795 

V.  Waters,  8  Cow.  659,     -      393 


TABLE  OF  CASES.  [Pri. 

Pratt    V.  Willard,  6   McLean, 


Power    V.    Kirk,    1    Pittsburg 

Rep.  510,  -  -  -  585,  688 
Powers  V.  Dickie,  49  Ala.  81,    970,  982 

V.  Fletcher,  84  Ind.   154,       504 

V.  Guardian   Ins.  Co.  136 

Mass.  108  (49  Am.  Rep.  20),      273, 

278 
Powrie  v.  Fletcher,  2  Bay  (S. 

Ca.),  146,  -  -  -  -  1079 
Pratt  V.  Langdon,  97  Mass.  97 ; 

12  Allen,  546,  -  -  -  40,  91 
V.  McHatton,  11  La.  Ann. 

260,     76 1,  766,  775,  782,  789, 930,  974, 

986 
V.  Ogdensburg  &    Lake 


Champlain   R.  R  103  Mass. 
557,  .        ...        66,  134 

—  V.  Page,  33  Vt.  18,     608,  609,  626 


37, 1067 

Pray  v.  Mitchell,  60  Me.  430,  -  856 
Prentice  v.  Elliott,  72  Ga.  154,      785, 

786,  949 
Prentiss  v.  Brennan,  1  Grant's 

Ch.  (Up.  Can.)  484,        -      545,  790 

V.  Foster,  28  Vt.  743,        -      695 

V.  Sinclair,  5  Vt.  149  (20 

Am.  Dec.  288),  -  -  618,  621 
President  v.  Cornen,  37  N.  Y. 

320, 625 

Pressley  v.  Harrison,  102  Ind. 

14, 995 

Preston  v.  Colby,  117  111.  477,      835, 

b47 
V.  Foellinger,  34  Fed.  Rep. 

680,  ....       107,  611 

V.  Strutton,  1  Anstr.  50,  -      861 

Preusser  v.  Henshaw,  49  Iowa, 

41,  ....       510,  511 

Prewett    v.    Buckingham,    38 

Miss.  92,  ....  942 
Price's  Estate,  81  Pa.  St.  263,  -  987 
Price,  Re,  6  Bankr.  Reg.  400,  -  1131 
V.  Alexander,  3  G.  Greene 

(Iowa),  437  (52  Am.  Dec.  526),  43, 
45,  416,  418,  419 

V.  Barker,  4  E.  &  B.  760,       385, 

386 

V.  Gavins,  50  Ind.  122,      -      845 

V.  Drew,  18  Fla.  670,      849,  851, 

852,  858,  865 

V.  Groom,  2  Ex,  542,         -  53,  88 

V.  Hicks,  14  Fla.  565,       281,  885, 

290,  393,  736 

V.  Hunt,  59  Mo.  258,     410,1141, 

1145 

V.  Mulford,  36  Hun,  347,        483 

V.   Towsey,   3  Litt.  (Ky.) 

433, 612 

Priest    V.    Chouteau,    13    Mo. 

App.  353  (affd.  85  Mo.  398),    -      26, 

261,  291,  1147 
V.  Chouteau,    85  Mo.  398 

(aff.  12  Mo.  App.  252),     26,  261,  290, 

391,  832,  1147 


cxlv 


Pri.] 


TABLE  OF  CASES. 


[Rad. 


Prince  v.    Crawford,  50  Miss. 

344,  318,  322,  329,  343,  345,  371 

Princeton   &  Kingston    Turn- 
pike Co.  V.  Gulick,  16  N.  J. 

L.  IGl,  -  13,  350,  365,  009,  615,  624 
Pringle  v.  Leverich,  16  Jones 

&  Sp.  90,  94,  -  -  -  -  92 
V.  Leverich,  97  N.   Y.  181 

(49  Am.  Rep.  522),  -        -      700 

Priutup  V.  Turner,  05  Ga.  71,    -     296, 

1086,  1093 
Pritt  V.  Clay,  6  Beav.  503,  -  959 
Prize  Cases,  2  Black,  635,  114,  582 
Prosser  v.'  Hartley,  35   Minn. 

340, 1131 

Proudfoot  V.   Bush,  7  Grant's 

Ch.  (Up.  Can.)  518,  -  -  229 
Prouty    V.    Swift,    51    N.    Y. 

594,  ....  36,  43 

Providence  v,  Bullock,  14  R.  L 

353, 285 

Prudhonime   v.   Henry,  5  La. 

Ann.  700,  -  -  -  -  695 
Puckett  V.    Stokes,   2    Baxter 

(Tenn.),  442,  -  -  -  439,  443 
Pugh  V.  Currie,  5  Ala.  446,     285,  293, 

294 
Pullen  V.  Whitfield,  55  Ga.  174,     747, 

750 
Punnett,  Ex  parte,  16  Ch.  D. 

226, 659 

Purdy  V.    Powers,   6    Pa.   St. 

442,  ...  -  1038,  1046 
Purinton  v.  Ins.  Co.  72  Me.  22,  333 
Pursley  v.  Ramsey,  31  Ga.  403,      191 

193,  322,  618 
Purviance  v.  Dryden,  3  S.  &  R. 

402, 1162 

V.  Edwards,  17  Fla.  140,    -    1087 

V.   McClintee,  6  S.  &  R. 

259, 44 

v.  Sutherland,  2  Oh.   St. 

478,  348,  416,  418,  420,  422,  423 

Purvines  v.  Champion,  67  111. 

459,  -  -  -  858,  866,  892 
rurvis,  Re,  1  Bankr.  Rog.  163,  382 
Puschel  v.  Hoover,  16  111.  340,     1050 


Put  man  v.  Fife  Lake  Twp.  45 

Mich.  125,       -        -        -       176,  177 
Putnam  v.  Dobbins,  38  111.  394,       283 

v.  Parker,  55  Me.  235,      733,  734 

V.  Ross,  55  Mo.  116,        456  1051 

V.  Wise,  1  Hill,  234,  -        61 

Pyke  V.  Searcy,  4  Porter  (Ala.), 
52, 742 


Q. 

Quackenbush   v.    Sawyer,    54 

Cal.  439,  -        -        -    31,  45,  63 

Quagle  v.  Guild,  91  III.  378,  -  942 
Queen   v.   Mallinson,  16  Q.  B. 

367,  -  .  -  .  277,  898 
v.  Robson,    16   Q.    B.    D. 

137, 75 

Quillen  v.  Arnold,  12  Nev.  234,     722, 

724 
Quincy  v.  Young,  5  Daly,  327 

(rev.  in  part,  63  N.  Y.  370),  -  1149 
Quine  v.  Quine,  9  Sm.  &  Mar.  . 


155, 


IJ 


Quinlan  v.  Keiser,  66  Mo.  603,  959 
Quinlivan  v.  English,  42  Mo. 

362, 921 

V.    English,    44    Mo.    46 

(limiting  42  id.  362),  -  993,  999 
Quinn  v.  Fuller,  7  Cush.  224,  -    393, 

1044 

R. 

Raba  v.   Ryland,  Gow,  N.  P. 

133, 258 

Rabby  v.  O'Grady,  33  Ala.  255,  .  1144 
Rabe  v.  Wells,  3  Cal.  148,  -  617 
Rackstraw  v.  Imber,  Hc>lt,  N. 

P.  368, 858 

Radcliff  V.  Woods,  25  Barb.  52,    1131, 

1133 
Radcliffe  v.  Varner,  55  Ga.  427,     323, 

1084 
Radenhurst  v.  Bates,  8  Bing. 

463, 890 


cxlvi 


Eai.] 


TABLE  OF  CASES. 


[Rea. 


Raiguel's  Appeal,  80  Pa.  St.  234 

(as  Wentworth  v.  Raiguel,  9 

Phila.  275),  -  .  43,  455,  548,  931 
Railroad  Co.  v.  Bixby,  55  Vt. 

235,  ....     133,  1111 

V.  Sprayberry,  8  Bax.  341,        66 

Eainey  v.  Nance,  54  111.   29,     1109, 

1111 
Ralph   V.   Lockwood,   61  Cal. 

155, 129 

Ralston  v.  Moore,  105  Ind.  243,  749 
Raraey  v.  McBiide,  4  Strob.  (S. 

Ca.)  L.  12,  -  -  -  -  411 
Rammelsberg  v,    Mitchell,  29 

Oh.  St.  22,  244,  296,  297,  298,  598, 
599,  661,  665,  743 
Rarasbottoni  v.  Lewis,  1  Camp. 

179,  ....  349,  695 
Ramsey  v.  Barbaro,  12  Sm.  & 

Mar.  (20  Miss.)  661,  -  -  894 
Randall  v.  Baker,    20    N.    H. 

335, 407 

V.  Hunter,  66  Cal.  513,      -      347 

V.  Johnson,  13  R.  L  338,     1105, 

1108,  1111 
V.   Morrell,    17  N.  J.  Eq. 

343, 995 

Randegger  v.  Holmes,   L.  R.  1 

C.  P.  679,  -  -  •  -  -  233 
Randel  v.  Yates,  48  Miss.  685,  1137 
Randle  v.  Richardson,  53  Miss. 

176,         181,  764,  765,  770,  795,  812, 

982,  985 


V.  State,  49  Ala.  14, 


43 


Randolph,    In    re,    1    Ontario 
App.  315,        -        -        -        -        23 

V.  Daly,  16  N.  J.  Eq.  313,      569, 

1130 

V.  Govan,  14  Sm.  &  Mar. 

9, 1135 

V.  Peck,  1  Hun.  138,        -      698 

Randolph   Bk.  v,   Armstrong, 

11  Iowa,  515,  -        -        -      401 

Rank  v.  Grote,  50  N.  Y.  Supe- 
rior Ct.  275,    -        -        -       281,  297 

Rankin    v.    Harley,    12    New 
Brunswick,  371,    -        -        -    1158 


Rankin  v.  Jones,  2  Jones  (N. 

Ca.),  Eq.  169,  -        -        -       551,  560 

V.  Shephardson,  89  111.  445,      646 

Ransom  v.  Loyless,  49  Ga.  471,  612 
V.  Van  Deventer,  41  Barb. 

307,  -  -  -  561,  562,  564 
Rapier  v.  Gulf  City  Paper  Co. 

64  Ala.  330,  ....  286 
Rapp  V.  Latham,  2  B.  &  Aid. 

795,         -        -        -       331,  473,  479 

V.  Vogel,  45  Mo.  534,        -    1149 

Ratlibone     v.     Drakeford,     4 

Moo.  &  P.  57,  -  -  -  380 
Rathwell  v.  Rathwell,  26  Up. 

Can.  Q.  B.  179,  -  -  718,  741 
Ratzer  v.  Ratzer,  28  N.  J.  Eq. 

136, 1136 

Rau  V.  Boyle,  5  Bush,  253,  -  819 
Ravenscraft  v.  Pratt,  22  Kan. 

20, 926 

Rawlins  v.  Wickham,  3  De  G. 

&  J.  304  (S.  C.  below,  1  Giflf. 

355), 595 

Rawlinson  v.  Clark,   15  M.  & 

W.  292, 43 

V.  Moss,  7  Jur.  N.  S.  1053,      710 

Rawson  v.  Pratt,  91  Ind.  9,  657,  659 
V.  Taylor,   30  Oh.  St.  389 

(27  Am.  Rep.  464),  -        -      534 

Ray  V.  Bogart,    2  Johns.   Ch. 

433, 953 

V.  Powers,  134  Mass.  23,  -        75 

Rayburn  v.  Day,  27  111.  46,  -  526 
Raymond,    Sir  Charles'   Case, 

cited  in  2  Rose,  252,  255,       -      167 

v.'Bigelow,  11  N.  H.  466,       643 

— ;-  V.  Came,  45  N.  H.  201,  -  930 
— ^  V.  Putnam,  44  N.  H.   160 

(S.  C.  as  Raymond  v.  Came, 

45  id.  201),       -      150,  255,  813,  813, 

817,  930 
V.  Vaughan,  17  III.  App. 


144, 


581 


Read  v.  Bailey,  L.  R.  3  App. 
Cas.  94  (aff.  S.  C  sub.  nom. 
Lacey  v.  HiU,  Ch.  D.  537),     836, 

839 


cxlvii 


Re  A.] 


TABLE  OF  CASES. 


[Rel 


Read  v.  McLanahan,  15  Jones 

&  Sp.  275,      -        -        -        -    1105 

V.  Nevitt,  41  Wis.  348,     -     244, 

305,  890 

V.  Smith,  60  Tex.  379,     110,  119 

Reading  R.  R.  v.  Johnson,  7 

W.  &  S.  317,  ...      386 

Rebel-  v.  Columbus  Mach.  Mfg. 

Co.  12  Oh.  St.  175,         -        -      109 
Reboul  V.  Chalker,   27  Conn. 

114,         -        -        -        -        78,  577 
Receivers  of  Mechanics'  Bank. 
.  See    Mechanics'   Bank,    Re- 
ceivers of. 
Record    v.    Record,    21     New 

Brunswick,  277.    -        -        -      378 
Reddington    v.    Lanahan,    59 

Md.  429,  -        -        -         17,  43 

Rediieffer  v.  Leather,  15  Mo. 

App.  12,  ...        -      710 

Redlon   v.    Churchill,   73  Me. 

146    (40    Am.   Rep.    345;   14 

Centr.  L.  J.  412),     -       349,  355,  358 
Redmayne  v.  Forster,  L.  R.  2 

Eq.  467,  -        -       163,  185,  927 

Redmond    v.     Stausbury,    24 

Mich.  445,       -        -        -        -     10G7 
Reece  v.  Hoyt,  4  Ind.  169,    276,  577. 

585,  750 
Reed  V.  Girty,  6  Bosw.  567,  420,  537 
V.  Hanover  Branch  R.  R. 

105  Mass.  303.        -        -        -     1018 
v.  Hussey,  Blatchf.  &  H. 

Adm.  525,      -        -        -        -        59 

V.  King,  23  Iowa,  500,     644,  951 

V.   Kremer,    111    Pa.    St. 

482,         .        -        -        -     109,  1154 
V.  McLanahan,   15  Jones 

&Sp.  275,      -        -        -        -     1103 
V.  McLeod,  20  Ala.  576,    -    1125 

V.  Murphy,  2  G.  Greene 

(Iowa),    574    (52   Am.    Dec. 

520), 43,45 

V.  Shepardson,  2  Vt.  120 

(19  Am.  Dec.  697),    1101,  1105,  1107 

V.  Vidal,  5  Rich.  (S.  Ca) 

Eq.  289, 1012 


Reed  v.  White,  5  Esp.  122,      533,  528 
V.  Whitney,  7  Gray,  533,     1081 


Reeder  v.  Sayre,  70  N.  Y.  180, 

190, 724 

Reese  v.  Bradford,  13  Ala.  837,     551, 

560,  824,  929 

V.  Kindred,  17  Nev.  447,     722, 

724 

V.  Kinkead,  18  Nev.  126,  -     550, 

1067 

Reeve,  Ex  parte,  9  Ves.  583.    -     436, 

835,  836,  843,  845 

Reeves  v.  Ayers,  38  111.  418,    -     187, 

291,  295 
V.    Denicke,  12  Abb.  Pr. 


N.  S.  92,  -        -        -        - 

—  V.  Goff,  3  N.  J.  L.  194,  454, 


609, 

Reevs  v.  Hardy,  7  Mo.  348, 
Reg.  V.  Warburton,  L.  R.  1  Cr. 

Cas.  274;  11  Cox,  C.  C.  584, 
Regester  v.  Dodge,  19  Blatchf. 

79;  6  Fed.  Rep.  6;  61  How. 

Pr.  107, 

Regina  v.  Evans,  9  Jur.  N.  S. 

184, 

V.  McDonald,  7  Jur.  N.  S. 

1127;  31  L.  J.  M.  C.  67, 
V.  McNaney,  5  Up.   Can. 


670 

70 
439 

277 


519 

277 
43 

P.  C.  438,  -  -  -  -  421 
Rehill  V.  McTague  (Pa.),  7  Atl. 

Rep.  224,  -  -  955,  959,  961 
Reid,  Ex  parte,  2  Rose,  84,     155,  840, 

846 
V.  Eatanton  Mfg.  Co.  40 

Ga.  98, 8 

V.  Godwin,  43  Ga.  527,     188,  884 

V.  Hollinshead,  4  B.  &  C. 

867 ;  7  Dow.  &  Ry.  444,        -  60,  65, 

258,  406 

V.  McLeod,  20  Ala.  576,    -     1125 

V.  McQuesten,  61   N.  H. 

421,  ...  -  780,  868 
Reilly  v.  Reilly,  14  Mo.  App. 

62, 167,  169 

V.  Smith,  16  La.  Ann.  31,      612, 

017 


cxlviii 


Rei  J 


TABLE  OF  CASES. 


[Ria 


Reilly  v.  Walsh,  11  Irish  Eq. 

OQ      -  -  .  .  -  - 


313 


Eeirasdyk    v.    Kane,    1    Gall. 

630,  -        -        -        204, 441,  705 

Eeinheimer  v.  Hemingway,  35 

Pa.  St.  432,  -  -  -  -  1111 
Reis  V.  Hellman,   25   Oh.    St. 

180,  -  -  158,  761,  870,  871 
Reiter  v.  Morton,    96   Fa.  St. 

229,  -  -  -  210, 591,  873 
Remick  v.  Emig,  42  111.  342,   -     181, 

727 
Remington  v.  Allen,  109  Mass. 

47, 275 

V.  Cunimings,  5  Wis.  138,     377, 

380 
Rencher  v,   Anderson,   95  N. 

Ca.  208,  ....      944 

Rend  v.  Boord,  75  Ind.  307,     -      348 
Renfrew  v.  Pearce,  68  111.  125,     545, 

790 
Renfro  v,  Adams,  62  Ala.  302,  389 
Renny's  Patent  Button-Hole- 

ing  Co.  V.  Somervell,  38  L. 

T.  N.  S.  878;  26  W.  R.  786,  -  669 
Reno  V.  Crane,  2  Blackf.  217,  266 
Rensselaer    Glass    Factory    v. 

Reid,  5  Cow.  587,  785,  786,  788 

Renton  v.   Chaplain,  9  N.   J. 

Eq.  62,     311,  583,  584,  585,  754,  756, 

993,  999,  1111 
Reppert  v.  Colvin,  48  Pa.  St. 

248, 703 

Reubin   v.  Cohen,  48  Cal.  545,       367 
Revis  V.  Lamme,  2  Mo.  [207] 

168, 1049 

Rex  V.  Dodd,  9  East,  516,  73,  457 

V.  Hodgson,  12  Price,  537,       831 

V.  Manning,  Comyn,  616,      468 

V.  Rock.  2  Price,  198,        -      831 

V.  Sanderson,  Wightwick, 

50, 831 

Reynell  v.  Lewis,  15  M.  &  W. 

517;  1  Sim.  N.  S.  178,  -  79,  89,  99 
Reynold  v.  Bullock,   47  L.  J. 

Ch.  773;  39  L,  T.  N.  S.  443; 

26  W.  R.  678,  -        -       661,  665 


Reynolds  v.  Austin,  4  Del.  Ch. 

24, 581,  1003 

V.  Bowley,  L.  R.  2  Q.  B. 

474,  ...  -  155,  840 
■  V.  Cleveland,  4  Cow.  282 

(15  Am.  Dec.  369),  -        -      445 

V.  Hicks,  19  Ind.  113,       164,  168 

V.  Mardis,  17  Ala.  32,        -      781 

V.  Patrick,  52  Mich.  590,  -      634 

V.  Pool,  84  N.   Ca.  37  (37 

Am.  Rep.  607),       -        -        -        61 

V.  Ruckman,  35  Mich.  80,      286, 

295 

V,  Toppan,  15  Mass.  370,   -        45 

V.  Waller,  1  Wash.  (Va.) 

164, 472 

Rhea  v.  Tathem,   1  Jones  (N. 

Ca.),  Eq.  290,  -        -       312,  589 

— —  V.  Vannoy,  1   Jones,  Eq. 

(N.  Ca.)  282,  -  -  -  -  589 
Rheam  v.  Smith,  2  Ph.  726,  -  934 
Rhett  V.  Poe,  2  How.  457,  -  399 
Rhiner  v.  Sweet,  2  Lans.   386,     455, 

888,  973 
Rhodes   v.    Amsinck,    38   Md. 

345,  -        -        -       377,  379,  935 

V.  McKean,  55  Iowa,  547,     365, 

647 

V.  Williams,  12  Nev.  20,     290, 

544,  566,  933,  970,  977 
Rhoton's    Succession,    34    La. 

Atm.  893,  -  ...  544 
Rianhard  v.  Hovey,  13  Oh.  300,  73 
Riarl  v.  Wilhelm,  3  Gill  (Md.), 

356,  -  -  -  856,  858,  863 
Rice,  Appellant,  7  Allen,  112,     746, 

749,  750 

,  Re,  9  Bankr.  Reg.  373,     -      832 

V.  Austin,  17  Mass.  197,     33,  47, 

59,  257 
V.  Barnard,  20  Vt.  479  (50 

Am.  Dec.  54),  -        -        13,  824 

V.  Barrett,  116  Mass.  312,        109 

V.  Barry,  2   Cranch,  C.  C. 

447, 365 

V.    Culver,    32  N.    J.  Eq. 

601, 897 


cxlix 


Ric] 


TABLE  OF  CASES. 


[Rig. 


Rice  V.   Doniphan,  4  B.  Mon. 

123, 1085 

V.   McMartin,    30    Conn. 

573,         -        -        -        387, 680,  685 

V.    Richards,    Busb,     (N. 

Ca.)  Eq.  277,  -        -        -       716,  722 

V.  Shute,  5  Burr.  2611,  -     454, 

457 

V.  Wolflf,  65  Wis.  1,  -        -      515 

V.  Woods,  21  Pick.  30,     883,  385 

Rich  T.  Davis,  4  Cal.  22,  -       352,  353 

V.  Davis,  6  Cal.  141,  -        -      352 

V.  Davis,  6  Cal.  1G3,  -       150,  154 

V.  Flanders,  39  N.  H.  304,     701, 

1140 

V.  Husson,  4  Sandf.  115,  -    1168 

V.  Roberts,  48  Me.  548 ;  50 

id.  395, 179 

Richards  v.   Baurman,    65   N. 

Ca.  162,  -        -        -       572,  577,  998 

V.  Burden,  59  Iowa,  723,  -      795 

V.  Butler,  65  Ga.  593,        -      628 

V.  Davies,  2  Russ.  &  M. 

347,         ....       910,  913 

V.  Fisher,  2  Allen,  527,     -     383, 

635,  884 
V.  Grinnell,    63  Iowa,  44 

(50  Am.  Rep.  727),  32,  302,  815, 

949,  951 

V.  Haines,  30  Iowa,  574,  -  1106, 

1113 
V.  Heather,   1  B.  &  Aid. 

29,  -        -        -        -        714,724,746 

V.  Hunt,  65  Ga.  342,  -      628 

V.  Hunter,  2  B.  &  B.  302,       724 

V.  Manson,  101  Mass.  482,      285, 

560,  584 

V.  Todd,  127  Mass.  167,     595,  775, 

780,  805,  897 
Richardson,  Ex  parte,  3  Madd. 

138, 600 

,  Re,  5  L.  J.  Ch.  129,  -      906 

,  Re,  11  Bankr.  Reg.  114,  -    1131 

V.  Adler,  46  Ark.  43,        -     1131 

V.    Bank   of  England,   4 

Myl.  &  Cr.  1G.5,  -  851,  883,  971 
V.  Coddington,  49  Mich.  1,       496 


Richardson    v.    Dickinson,    6 

Foster  (26  N.  H.),  217,   -        -      169 

V.  Farmer,  36  Mo.  35,      156,  445 

V.  French,  4  Met.  577,     341,  483 

V.  Fuller,  2  Oreg.  179,       -      377 

V.  Hastings,  7  Beav.  323,       914 

V.  Huggins,  23  N.  H.  106,     200, 

453 
V.  Hughitt,  76  N.  Y.  55  (32 

Am.  Rep.  267),  -  -  23, 47,  49 
V.     Humphreys,     Minor 

(Ala.),  383,      -        ...      449 

V.  Lester,  83  111.  55,  -        -      406 

V.  Moies,  31  Mo.  430,      694,  698, 

707 

V.  Pitts,  71  Mo.  128,  -  5 

V.  Smith,  21  Fla.  336,       -    1049 

V.  Snider,  72  Ind.  425  (37 

Am.  Rep.  1G8),       -        -        -      625 

V.  Tobey,  3  Allen,  81,       557,  560 

V.  Turner,  36  Mo.  35,        -      157 

V.  Wyatt,  2  Desaus,  471,  •     290, 

761,  764,  766,  978,  979 
Riches,  Re,  5  N.  R.  287,  -  -  362 
Richmond  v.  Heapy,  1  Stark. 

202,  ....    1035,  1038 

V.  Judy,  6  Mo.   App.  465,        75 

Richter  v.   Poppenhausen,   42 

N.  Y.  373  (9  Abb.  Pr.  N.  S. 

263;  39  How.  Pr.  82),     52,  53,  747, 

750 
Rick  V.  Neitzy,  1  Mackey  (D. 

C),  21, 909 

Ricker  v.    American   Loan  & 

Trust  Co.  140  Mass.  346,  -  72 
Ricketts  v.  Bennett,  4  C.  B.  686,  320 
Rickey  v.   Bowne,    18  Johns. 

131, 899 

Ridenour  v.   Mayo,  40  Oh.  St. 

9, 6,  1158 

Ridgen  v.  Pierce,  6  Mad.  353,      974 
Ridgway  v.    Clare,    19  Beav. 

Ill, 828 

V.  Grant,  17  111.  117,         -      890 

Rieser,  Re,  19  Hun,  202,    -      836,  837 
Ridden    v.    Pierce.    6    Madd. 

244 


353, 


cl 


Eia.] 


TABLE  OF  CASES. 


[Rob. 


Riggs  V.   Hawley,    116    Mass. 
596, 958 

Riley  v.  Noyes,  45  Vt.  455,       -      469 

Rimel  v.  Hayes,  83  Mo.  200,      91,  98, 

109,  317,  1151 

Riper  v.  Poppenhausen,  43  N. 
Y,  68  (see  Richtei-  v,  Poppen- 
hausen), ...        -      750 

Ripley  v.  Colby,  28  N.  H.  438,     1142 

V.  Kingsbury,  1  Day,  150, 

n.  a, 439 

V.  People's  Savings  Bank, 

18  lU.  App.  430.     -        -        -     1103 

V.  Thompson,  12  Moore, 

55, 1168 

Rippey  v.  Evans,  22  Mo.  157,      101. 

109 
Rishton  v.  Grissell,  L.  R.  5  Eq. 

326,  .  -  -  .  781,  922 
Ritchie  v.  Kinney,  46  Mo.  298,       547 

V,  Moore,   5  Munf.  (Va.) 

388  (7  Am.  Dec.  688),  -  -  1081 
Rittenhouse  v.  Leigh,  57  Miss. 

697,  .  -  -  -  97,  136 
Rix,  Ex  parte,  Mont.  237,         -      835 

V.  Elliot,  1  N.  H.  184,       -    1125 

Rizer  v.  James,  26  Kan.  221,  -       04, 

1155 
Roach  V.    Brannon,    57    Miss. 

490,       726,  728,  731,  746,  1117,  1120 

V.  Ivey,  7  S.  Ca.  434,      570,  955, 

959,  963 

V.  Perry,  16  111.  37,  181,  770 

Roache  v.  Pendergast,   3  Har. 

&  J.  33, 575 

Roakes  v.  Bailey,  55  Vt.  542,  -  612 
Robb  v.  Bailey,  13  La.    Ann. 

457, 1067 

V.  Mudge,  14  Gray,  534,  -     503, 

551,  691,  833 
V.  Stevens,  Clarke,  Ch.  (N. 

Y.)  191,  -  -  -  552,  560,  824 
Robbins  v.    Fuller,    24  N.  Y. 

570,         -        -        681,  686,  687,  689 

V.  Laswell,  27  111.  365,        35,  56, 

216,  257,  972 
V.  Willard,  6  Pick.  464,     -     1151 


Roberts'    Appeal,   93    Pa.    St. 

407,  -  317,  321,  329,  363,  424 
Roberts  v.   Adams,    8    Porter 

(Ala.),  297  (33  Am.  Dec.  291),       691 

V.  Atwood,  8  B.  Mon.  209,     1073 

V.  Barrow,  53  Ga.  314,      -      367 

V.  Cuffin,  2  Atk.  112.        -      960 

V.  Fitler,  13  Pa.  St.  265,  -      850 

V.  Gr  is  wold,  35  Vt.  498,  -     650, 

655 

V.  Johnson,  58  N.  Y.  613,      471 

V.  Kelsey,  38  Mich.  602,   -     580, 

738 
V.  Law,  4  Sandf.  (N.  Y.) 

642, '738 

V.  McCarty,  9  Ind.  16,     282,  290, 

823 

—  V.  McKee,  29  Ga.  161,       -      990 

—  V.  Oldham,  63  N.  Ca.  297,     848,  . 

1114 

—  V.  Pepple,  55  Mich.  367,    -    347. 

1094 

—  V.  Ripley,  14  Conn.  543,     884,  893 

—  V.  Roberts,  8  Rich.  L.  15,       847 

—  V.  Rowan,    3  Harr.  (Del.) 
314, 1049 

—  V.  Shepard,  3  Daly,    110,       339 

—  V.  Spencer,  123  Mass.  397,      617, 

621 

—  V.  Strang,  38  Ala.  566,     385,  534 


V.  Totten,  13  Ark.  609,    761,  764, 

961.  964 

V.  Yarboro,  41  Tex.  449,        1170 

Robertshaw    v.     Hanway,    52 

Miss.  713,       -      290,  719,  746,  1131 
Robertson    v.    Baker,    11   Fla. 

193,  -        -        281,  551,  559,  561 

V.  Corsett,  39  Mich.  777,       173, 

282 

V.  Findley,  31  Mo.  384.     -      634 

V.  Gibb,  38  Mich.  165,     970,  983 

V.  Jones,  20  New  Bruns- 
wick, 267,      -        -       -        -      446 

V,  Lockie,  15  Sim.  285;  10 

Jur.  533,  -        -        -       574,  581 

V.  Mcllhenny,  59  Tex.  615,     1029 

V.  Miller,  1  Brock.  428,     -      217 


cli 


Rob.] 


TABLE  OF  CASES. 


[Roa. 


Robertson  v.  Mills,  3  Harr.  & 

Gill,  93, 1163 

V.  Quiddington,  28  Beav.    , 

529,         ...        -      657,  673 

V.  Read,  17  Gratt.  544,     -      810 

V.  Smith,  18  Johns.  459,  535 

Robias   v.    Warde,    111    Mass. 

244,  .        -        -        -     981,  1147 

Robinson's  Case,  6  DeG.  M.  & 

G.  572, 73 

Robinson,  Ex  parte,  3  Dea.  & 

Ch.  37G ;  1  Mont.  &  A.  18,    -      755 

V.  Aldridge,  34  Miss.  352,     347, 

361,  362 
V.  Anderson,  20  Beav.  98 ; 

7  D.  M.  G.  289,       -       181.  770,  780 

V.  Ashtou,  L.  R.  20  Eq.  25,      256, 

284 

V.  Bland,  2  Burr.  1086.     -      758 

V.  Bullock,  58  Ala.  618,     61,  876 

V.  Crowder,  4  McCord  (S. 

Ca.),    L.  519   (17   Am.   Dec. 

762),        -        299,  338,  340,  417,  418 
V.  Crowde]-,  1  Bail.  (S.  Ca.) 

185, 1120 

V.  Davison,  L.  R,  6  Exch. 

269,  -        -        -       224,  770,  780 

V.  GilQllan,  15  Hun,  267,       261, 

274,  981 
V.    Gleadow,    2  Bing.    N. 

Cas.  156,         ....      409 
—  V.  Goings,  63  Miss.  500,    -     466, 

467,  408 
V.   Green,   5  Harr.   (Del.) 

115,  -  854,  1135,  1136,  1139 

V,  Gregory,  29  Barb.  560,       340 

V.  Haas,  40  Cal.  474,       62,  1143, 

1153 

V.  Hall,  3  Met.  301,  -        -    1128 

V.   Hofman,  4  Bing.   562; 


1  Moo.  &  P.  474,     - 

—  V.  McFaul,  19  Mo.  549,     - 

—  V.    Mcintosh,    3    E.     D. 


381 
1167 


Smith,  22,       -        -        -        -  1015 

—  V.  Magarity,  28  111.  423,    -  191 

—  V.  Mansfield,  13  Pick.  139,  1022 

—  V.  Marchaut,  7  Q.  B.  918,  1032 


Robinson    v.    Moriarity,    2  G. 

Greene  (Iowa),  497,        -        -      543 

V.  Robinson,  10  Me.  240,  -      458 

V.  Taylor,  4  Pa.  St.  242,    -      695 

V.  Tevis,  38  Cal.  611,     180,  1102, 

1103 
V.   Thompson,   1  Vernon, 

465,  ....  432,  958 
V.  Thompson,  Sm.  &  Mar. 

Ch.  (Miss.)  454,  -  -  -  722 
V.    Turner,   3    G.    Greene 

(Iowa),  540,     ...        -     1163 

V.  Ward,  13  Oh.  St.  293,       176 

V.    Wilkinson,    3    Price, 

538,  ....       420,  525 

V.  Williams,  8  Met.   454,     858, 

863 

V.  Worden,  33  Mich.  316,       623 

V.  Wright,  Brayton  (Vt.), 

22, 738 

Robley  v.  Brooke,  7  Bligh,  90,  265 
Robson  V.  Curtis,  1  Stark.  78,     853, 

872 
V.  Drummoud,  2  B.  &  Ad. 

303,  -        -        -        -     710,  1020 

Rochester  v.  Monteath,  1  Den. 

402  (43  Am.  Dec.  681),  -  193 
V.  Trotter,   1  A.  K.  Mar. 

(Ky.)  54,  ....  361 
Rockwell    V.   Wilder,   4    Met. 

556,  -        -        -        861,  864,  881 

Roddin,  Re,  6  Biss.  377,  -  453,  829 
Rodcnv.  Roland,  1  Stew.  (Ala.) 

266, 1121 

Rodes    V.    Rodes,    6    B.    Mou. 

400, 766 

Rodgers  v.  Maw,  15  M.  &  W. 

444;  4  Dow.  &  L.  66,     -       532,  533 

V.  Meranda,  7  Oh.  St.  179.     824, 

825,  828,  832,  836,  837 
Rodriguez    v.     Hcffernan,      5 

Johns.  Ch.  417,  -  -  -  184 
Rogers  v.   Batchelor,   13  Pet. 

221,  ....    1038,  1040 

v.  Coit,  0  Hill,  323,   -        -      441 

V.  Nichols,  20  Tex.  719,    -     263, 

■552,  554,1101,  1109 


clu 


Roo.] 


TABLE  OF  CASES. 


[Eow. 


Rogers  v.  Nuckolls,  2  Colorado, 

281, 1073 

V.  Rogers  (Conn.),  21  Rep. 

394, 674 

V.  Rogers,  5  Ired.  (N.  Ca.) 

Eq.  31,    -        -        -        -       900,  905 

V.  Suttle,  19  lU.  App.  163,    1145, 

1154 

V.  Taintor,  97  Mass.  291,      198, 

670,  671 
Rolirbough  v.   Reed,    57    Mo, 

293, 1065 

Rolfe  V.  Dudley,  58  Mich.  208,  465 
V.  Flower,  L.  R.   1  P.   C. 

27, 512,  530 

—  V.  Rolfe,  15  Sim.  88,  -  677 
Rollins  V.  Stevens,  31  Me.  454,     349, 

358 
Rolston  V.  Click,  1  Stew.  (Ala.) 

526,  ....  349,  363 
Romain  v.  Garth,  3  Hun,  214,  383 
Roney  v.  Buckland,  4  Nev.  45,     341, 

370,  373,  1170 
Rooke  V.  Nisbet,  50  L.   J.   C)i. 

588;  29  W.  R.  843,  -  803,  804 
Roop   V.    Herron,    15  Neb.    73 

(commented   upon  in  17  id. 

489),        .        173,  553,  562,  563,  593 

V.  Rogers,  5  Watts,  193,  -    1115 

Roosvelt  V.   McDowell,  1  Ga. 

489, 750 

Root  V.  Gay,  64  Iowa,  399,  257,  1133 
Rootes  V.   Wellford,   4  Munf. 

(Va.)215,  ....  700 
Rooth  V.  Quin,  7  Price,  193,  335,  618 
Roots  V.  Salt  Co.  27  W.   Va. 

483,  -  406,  689,  693,  694,  770 
Ropes  V.  Upton,  125  Mass.  258,     676, 

678 
Rose  V.  Baker,  13  Barb.  230,    -     447, 

524,  537 
V.  Coffield,  53  Md.   18  (36 

Am.  Rep.  389),  -  -  613,  618 
- —  V.  Guun,  79  Ala.  411,       737,  737 

V.    Keystone    Shoe    Co. 

(Sup.  Ct.  Pa.  1886)  18  Weekly 
Notes,  585,      -        -        -        -      567 


Rosenfeld  v.  Haight,  53  Wis. 

260  (40  Am,  Rep.  770),  17,  49,  50 
Rosenkrans  v.  Barker,  115  111. 

331,  .  -  466,  467,  468,  469 
Rosenstiel  v.  Gray,  112  111.  282,  161, 
167,  184,  917,  918,  931,  971,  972 
Roseuzweig  v.  Thompson,  66 

Md.  593,  .  .  -  934,  926 
Ross  V.  Cornell,  45  Cal.  133,     -     570, 

849,  852.  859 

V.  Drinker,  2  Hall,  415,    -        43 

V.  Everett,  12  Ga.  30,        .     1055 

V,  Henderson,  77  N.  Ca. 

170,        184,  285,  291,  295,  834,  1099, 

nil,  1112 

V.    Howell,    84    Pa.    St. 

129, 377 

V.   McLauchlan,   7  Gratt. 

86, 963 

V.  Parky ns,  L.   R.  20  Eq. 

331, 43 

V.  Pearson,  21  Ala.  473,     -    723, 

736,  738 
V.  Titsworth,  37  N.  J.  Eq. 

333,  .  -  .  834,  935,  1006 
V.  West,  2  Bosw.  360,       .      893 


Roth  V.  Colvin,  33  Vt.  135,     338,  353, 

354 

V.  Moore,  19  La.  Ann.  86,       446 

Rothwell    V.     Humphreys,     1 

Esp.  406,         ....      370 
Roulston    V.    Washington,    79 

Ala.  529,r         ....      908 
RoLiten    V.  Bostwick,  59  Ala, 

360, 980 

Routh  V,  Peach,  3  Anstr.  637,       234 

V.  Webster,  10  Beav.  561,     672, 

990 
Rowand  v,  Fraser,  1  Rich.  (S. 

Ca,)  L.  335,     ....      543 
Rowe  V.  Wood,  2  Jac,  &  W, 

589, 313 

Rowland,  Re,  L,  R,  1  Ch.  App.  • 

421,  .        -        .        .      *.       105 

V,  Boozer,  10  Ala.  690,     301,  303, 

893 
V.  Long,  45  Md.  439,        .  4 1,  56 


cliii 


Row.] 


TABLE  OF  CASES. 


[Sag. 


Rowland  v.  Header  Furniture 

Co.  38  Oh.  St.  269,  -        -  4 

V.  Miller,  7  Phila.  3G2,      -      812 

Rowlands  v.  Evans,  30  Beav. 

202,  ...  -  581,  977 
Rowlandson,  Ex  parte,  1  Rose, 

89, IG,  44 

Rowley  v.  Adams,  8  Jur.  994,       288 

V.  Stoddard,  7  Johns.  207,       385 

Rowsey  v.  Lynch,  61  Mo.  560,  636 
Royal  Canadian  Bank  v.  Wil- 
son, 24  Up.   Can.  C.  P.  362,      199, 

354,  360,  362 
Royer  v.  Aydelotte,  1  C.  S.  C. 

R.  80, 480 

Roys  V.  Vilas,  18  Wis.  169,     722,  731. 

743,  976 
Royster  v.  Johnson,  73  N.  Ca. 

474,  ...  -  772,  919 
Ruckman  v.  Decker,  23  N.  J. 

Eq.  283  (rev.  in  part,    28  id. 

614),  -  -  35,  331,  391,  685 
Ruddick  v.  Otis,  33  Iowa,  402,       43, 

56,  1170 
Ruffin,  Ex  parte,  6  Ves.  119,  544, 
550,  551,  559,  679 
Ruffner  v.  Hewitt,  7  W.  Va. 

585, 680 

V.  Hewitt,  14  W.  Va.  737,       938 

V.  McConnel,  17  111.    212 

(63  Am.  Dec.  362),  -        -      299 

Ruhev.  Burnell,  121  Mass.  450,    1151, 

1152 
Ruhl  V.  Phillips,  2  Daly,  45,  -  560 
Rumery  v.  McCuUoch,  54  Wis. 

565,  -        -        -       338,  339,  340 

Runyon  v.  Brokaw,  5  N.  J.  Eq. 

340, 234 

Rupp,  Re,  4  Bankr.  Reg.  25,  -  1131 
Rushing   v.  Peoples,   42  Ark. 

390,  ....  257,260 
Rushton  V.  Rowe,  64  Pa.  St.  63,  1 124 
Russ  V.  Fay,  29Vt.  381,  -  -  1105 
Russell  v.  Annable,  109   Mass. 

72  (12  Am.  Rep.  665j,     -       321,  347 

416,  423 
•  V.  Byron,  2  Cal.  86,  -      849,  856 


Russell  V.  Convers,  7  N.  H.  343,     1045 

V.  Green,  10  Conn.  269,     32.  382, 

490,  788,  982 

V.  Grimes,  46  Mo.  410,     8«7,  893 

V.  Leland,  12  Allen,  349,  -     585, 

904 

V.  Lennon,    39  Wis.    570 

(20  Am.  Rep.  60),  -  -  1131,  1132 
V.  Miller,  26  Mich.  1,        -      545 

V.    Minnesota    Outfit,    1 

Minn.  162,      -        -         70,  884,  892 

V.  Perkins,  1  Mason,  368,       655 

V.  Russell,  L.  R.  14  Ch.  D. 

471,         ....       233,  241 

V.  Swan,  16  Mass.  314,      -     1017 

Rust  V.  Chisholm,  57  Md.  376,     285, 

707 
V.  Hauselt,  9  Jones  &  Sp. 

467  (aflfd.  76  N.  Y.  614),  347,  363 
Ruth  V.  Lovvrey,  10  Neb.   260,     825, 

1066 
Rutland  Marble  Co.  v.  Ripley, 

10  Wall.  339,  -        -       571,  991 

Rutledge  v.  Squires,  23  Iowa, 

53, 347,  447 

Rutter  V.  Sullivan,  25  W.  Va. 

427, 1050 

Ryder  v.  Gilbert,  16  Hun,  168,     181, 

446,  1114 

V.  Wilcox,  103  Mass.  24,    17,  32, 

35,  873,  878 
Ryerson  v.  Hendrie,   22  Iowa, 

480, 315 

Ryhiner  v.  Feickert,  92  111.  305 

(34  Am.  Rep.  130),         -       -    1142 

s. 

Sabin  v.  Cooper,  15  Gray,  532,     1125 
Sadler,  Ex  parte,  15  Ves.  52,  -     832, 

834 

V.  Lee,  6  Beav.  324,         471,  474, 

480,  581 

V.  Nixon,  5  B.  &  Ad.  936,      852 

Sage  V.  Chollar,  21  Barb.  596,        560 
V.  Ensign,  2  Allen,  245,    -      705 


cliv 


Sag.] 


TABLE  OF  CASES. 


[Sar. 


Sage  V.  Sherman,  2  N.  Y.  417,      201, 
279,  292,  299,  322,  1050 

V.  Woodin,  6G  N.  Y.  578,        743 

Sager  v.  Tupper,  38  Mich.  258,     1143, 

1144,  1155,  1159 
Sailors  v.  Nixon-Jones  Printing 

Co.  20  111.  App.  509,  -  -  17,  88 
St.   Armand  v.  Long,  25  La. 

Ann.  167,  -  ...  156 
St.   Aubyn  v.   Smart,  L.  R.  3  > 

Ch.  App.  646,  -  -  -  474 
St.  Barbe,  Ex  parte.  11  Ves.  413,  837 
St.  Denis  v.  Saunders,  36  Mich. 

369,  -        -        -        -         61,  970 

St.  James  Club,  2  De  G.  M.  & 

G.  383, 75 

St.    John  V.  Hendrickson,   81 

Ind.  350,         ....      897 

V.  Holmes,  20  Wend.  609,       380 

St.  Louis  Ins.  Co.  v.  St.  Louis, 

Vandalia,  etc.  R.  R.  104  U.  S. 

146  (3  Am.  &  Eng.  R.  R.  Cas. 

.  563), 66 

St.  Louis  Type  Foundry  v.  Wis- 
dom, 4  Lea,  695,     -        -        -      494 
St.  Niciiolas  BIj.  v.  Savery,  13 

Jones  &  Sp.(45  N.  Y.  Superior 

Ct.)  97,  -  -  -  -  358,  363 
St.  Victor  V.  Daubert,  9  La. 

314, 43 

Sale  V.  Dishman,  3  Leigh  (Va.), 

548,  -  -  420,  423,  747,  750 
Salmon  v.  Davis,  4  Binn.  (Pa.) 

375  (5  Am.  Dec.  410),     -     3S1,  1035 
Saloy  V.  Albrecht,  17  La.  Ann. 
.75,  -        -        562,  566,  583,  756 

Salsbury  v.  Ellison,  7  Colorado, 

167  (49  Am.  Rep.  347),  -  726,  732 
Salt  Co.  V.  Guthrie,  35  Oh.  St. 

666, 112 

Salter  v.  Ham,  31  N.  Y.  321,    -        47 
Saltmarsh  v.    Bower,  22  Ala. 

231,  -  -  -  351,  370,  448, 
Saltoun  V.  Houstoun,   1  Bing. 

433,  -        239,  457,  635,  643,  879 

Sampson  v.  Shaw,    101  Mass. 

145,         -        -        -        112,  119, 749 


Sanborn  v.  Dwinell,  135  Mass. 

336, 934 

V.    Royce,    132  Mass.  594 

(21  Am.  Law  Reg.  N.  S,  799),     1106 
V.    Sanborn,    11    Grant's 

Ch.  (Up.  Can.)  359,        -      290,  297 
Sander  v.  Hoffman,  64  N.  Y. 

248  (rev.  7  J.  &  Sp.  307),        -      677 

V.  Sander,  2  Coll.  276,       -      581 

Sanders  v.  Knox,  57  Ala.  80,  -      496 

V.  Pepoon,  4  Fla.  465,       -      407 

V.  Scott,  68  Ind.  130,         -      788 

V.  Young,  31  Miss.  Ill,     -     584, 

1101,  1105,  1109 
Sanderson  v.  Milton  Stage  Co. 

18  Vt.  107,      -        -        -      575,  607 

V.  Sanderson,  17  Fla.  820,     789, 

793,  925,  947 

V.  Sanderson,  20  Fla.  293,     787, 

793 

V.  Stockdale,  11  Md.   563,     562, 

563,  939 
Sandham,  Ex  parte,  4  Deac.  & 

Ch.  812, 512 

Sandusky,  Re,  17  Bankr.  Reg. 

452,         ....       847,  848 
Sandy  v.  Randall,  20  W.  Va. 

244, 949 

Sanford   v.    Mickles,  4  Johns. 

224.         ....      690,  695 
Sanger  v.    Overmier,  64  Tex. 

57,  -        -        -        -  1086,  1088,  1091 
Sangster     v.     Mazarredo,      1 

Stark.  161,      -        -        -        -      331 
Sangston  v.  Hack,  52  Ind.  173,       43, 

216,  217,  775,  785,  789,  814,  952,  978 
San  Jose  Indiano,  2  Gall.  268,      191, 

793 
Sankey     v.     Columbus    Iron 

Works,  44  Ga.  228,        32,  43,  1151, 

1158 
Sanson  v.   Lathrop,    25  Barb. 

455, 825 

Santa    Clara    Min.    Ass'n     v. 

Quicksilver  Min.  Co.  17  Fed. 

Rep.  657  ;  8  Sawy.  330,  -        -      907 
Sarchet  v.  Sarcbet,  2  Oh.  320,      920 


civ 


Sar.] 


TABLE  OF  CASES, 


[SCO. 


Sargent  v.  Collins,  3  Nev.  260,     1150 

V.  Downey,  45  Wis.  498,  -        68 

V.    Franklin    Ins.    Co.    2 

Pick.  90,  ....  333 
Satterthwait    v.    Marshall,    4 

Del.  Ch.  337,  -  -  -  1012,  1013 
Sanfley  v.    Howard,  7   Dana, 

367,  -  -  80,  84,  101,  323,  459 
Saul  V.  Kruger,  9  How.  Pr.  569,  277 
Saunders  v.  Bartlett,  12  Heisk. 

316, 1105 

V.  Bcntly,  8  Iowa,  516,     -    1086 

V.  Duval,  19  Tex.  467,      978,  979 

V.  Rcilly,  105  N.  Y.  12,     -     190, 

565,  567,  824,  829,  1130 

V.  Wood,  15  Ark.  24,       930,  938 

Sauntry  v.    Dunlap,    12  Wis. 

364, 1045 

Sauthoff,    Re,  8   Biss.    35;    16 

Bankr,  Reg.  181;  5  Am.  Law 

Rec.  173,         -    SCO,  564,  1131,  1133 

566 


-,  Re,  16  Bankr.  Reg.  316, 


Savage,  Re.  16  Bankr.  Reg.3G8,      825, 

836,  837 

V.    Carter,  9  Dana,  403,     -     188, 

550,  552,  766,  973,  1111 

V.  Putnam,  32  N.  Y.  501,      187, 

534, 
Savannah  v.  Hines,  53  Ga.  616,  175 
Savery  v.    Thurston,     4     111. 

App.  55,  -        -        -       231,  815 

Saville  v,   Robertson,  4  T.  R. 

720, 71,  80 

Savings   Bk.    v.  Wulfekuhler, 

19  Kan.  60,     -        -        -        -      394 
Savings  &  Loan  Soc.  v,  Gibb, 

21  Cal.  595,  -  -  -  - 
Sawyer  v.  Proctor,  2  Vt.  580,  - 
v.  Tappan,  14  N.  H.  352,  - 


569 
899 
495 

581 


Sayer  v.  Bennett,  1  Cox,  107,  ■ 
Saylor  v.  Mockbie,  9  Iowa,  209,     544, 

994,  1002 
Sayre  v.  Peck,  1  Barb.  464,  -  960 
Scanlon  v.  Union  F.  Ins.  Co. 

4  Biss.  511,     -        -        -        -      271 
Scarf  V.  Jurdine,   L.  R.  7  App. 

Cas.  345,        109,  517,  612,  626,  1054 


Schaeffer  v.   Fithian,   17  Ind. 

463,         ....       568,  824 
Schalck  v.   Harmon,  6  Minn. 

265,  -       180,  680,  754,  824,  1111 

Scharringhausen   v.    Luebsen, 

52  Mo.  337,     -        -        -        -      247 
Schenkl   v.    Dana,    118    Mass. 

236,  ...        -       773,  773 

Schermerhorn     v.    Schermer- 

horn,  1  Wend.  119,        -       349,  363 
Schiele  v.  Healy,  61  How.  Pr. 

73, 561,  566 

Sch later  v.  Winpenny,  75  Pa. 

St.  321,  -        -        -       611,  631,  708 
Schraidlapp  v.  Currie,  55  Miss. 

597  (30  Am.  Rep.  530),    565,  5G8,  835 
Schmidt  V.  Lebby,  11  Rich.  Eq. 

329, 955 

Schmertz   v.  Shreeve,    63  Pa. 

St.  457  (1  Am.  Rep.  439),      416,  418 
Schnader  v.  Schnader,  26  Pa. 

St.  384, 1162 

Schneider  v.  Sansom,  62  Tex. 

201  (50  Am.  Rep.  531),  -        -      403 
Scholefield  v.  Eichelberger,  7 

Pet.  586,  -        -        -       580,  598 

Schoneman  v.  Fegley,  7  Pa.  St. 

433, 696 

Schooner  Ocean  Belle,  6  Ben. 

253, 908 

Schooner  Steelman,  5  Hughes, 

C.  C.  210,        -        .        -        -      496 
Schorten  v.  Davis,  21  La.  Ann. 

173, 613 

Schreiber  v.  Sharpless,  6  Fed, 

Rep.  175,        -        -        -        -      468 
Schriber    v.    Rapp,    5    Watts, 

351, 13 

Schuchardt,  In  re,  15  Bankr. 

Reg.  161,        -        .        -  472 

Schulte  v,  Anderson,  13  Jones 

&  Sp.  489  (45  N.  Y.  Superior 

Ct.),         ....      810,817 
Schwabacker  v.  Riddle,  84  III. 

517, 473a 

Scott's  Appeal,  88  Pa.  St.  173,      533, 

845,  846 


clvi 


SCO.] 


TABLE  OF  CASES. 


[See. 


Scott  V.  Bandy,  2  Head,  197,  -     349, 

364,  1168 

V.  Beale,  6  Jur.  N.  S.  559,       497 

V.    Bogait,    14   La.    Ann. 

2G1, 1085 

V.  Campbell,  30  Ala.  728,        26, 

850,  874,  876 

V.  Caruth,  50  Mo.  120,     849,  853, 

858 

V.  Clark,  1  Oh.  St.  382,     169,  770 

V.  Colmeanil,  7  J.  J.  Mar. 

416,  156,  157,  454,  525,  535,  608 

V.  Conway,  58  N.  Y.  619,      139, 

1052 

V.  Dansby,  12  Ala.  714,     -     347. 

362,  1152 

V.  Goodwin,  1  B.  &  P.  67,     1016 

V.  Green,  89  N.  Ca.  278,   -     904, 

905 

V.  Jones,  5  Ala.  694,  -    1167 

V.  Kenan,  94  N.  Ca.  296,  -    1131 

V.  Mcintosh,  2  Camp.  238,       865 

V.  McKinney,  98  Mass.  344,      265 

V.  Miller,  H.  V.  Johns.  220,      110 

V.  Pinkerton,  3  Edw.  Ch. 

70, 930,  938 

V.  Ray,  18  Pick.  360,         -      495 

V.  Rayment,  L.  R.  7  Eq. 

112,  ....  870,  1012 
V.  Rowland,  26   L.    T.   N. 

S.  391 ;  20  W.  R.  508,  -  671,  672 
V.  Searles,  5  Sm,  &  Mar. 

25, 738 

V.  Shipherd,  3  Vt.  104,     -     384, 

406,  449,  979 

V.  Trent,  1  Wash .  (Va. )  77,     412, 

1079 
V.  Trent,    1   Wash.    (Va.) 

526, 381 

V.  Tupper,  8  Sm.  &  Mar. 

280,  -  -  731,  732,  741,  1001 
Scottin  V.  Stanley,  1  Dall.  129,  70 
Scotto  V.  Bryan  (N.  Ca.  1887) ; 

3  S.  E.  Rep.  235,  -  -  -  760 
Scovill  V.  Kinsley,  13  Gray,  5,  640 
Scripture    v.    Gordon,    7  Up. 

Can.  C.  P.  164,       -        -        -      852 


Scroggs    V.    Cunningham,    81 

111.  110, 788 

Scruggs  V.  Blair,  44  Miss.  406,     281, 

294,  297,  1117 

V.  Burruss,  25  W.  Va.  670,     338, 

1099,  1111 

V.     Russell,      McCahon 

(Kan.),  39,      -        -        281,  301,  790 

Scrugham  v.  Carter,  12  Wend. 

131,         -        -  1105,  1109,  1111 

Scudder  v.  Ames,  89  Mo.  496,     742, 

770 

V.    Delashmut,    7    Iowa, 

39,  -        -        -        -        -       188,  550 
Scull's  Appeal  (Pa.  1886),  7  Atl. 

Rep.  588,         -        .        .      106,  1149 
Scull  V.  Alter,  16  N.  J.  L.  147,     519, 

556,  558,  842 
Sculthorpe    v.    Bates,    5    Up. 

Can.  Q.  B.  318,       -        -        -     1149 
Seabrook   v.  Rose,    2  Hill  (S. 

Ca.),  Ch.  553,  -        .        .        70 

Seaman     v.     Ascherman,     57 

Wis.  547,         -        -        -       320,  325 

V.  Huffaker,  21  Kan.  254,      188, 

550 
868 


V.  Johnston,  46  Mo.  Ill,  - 

V.  Waddington,  16  Johns. 

510, 

Sears  v.  Munson,  23  Iowa,  380, 


582 
63, 
773 
Sechel  v.  Mosenthal,  30  Beav. 

371, 1010 

Second  Nat'l  Bk.,  Appeal  of,  83 

Pa.  St.  203,  -  -  -  -  289 
Second  Nat'l  Bk.  v.  Farr  (N. 

J.),  7  Atl.  Rep.  892,  -  -  560 
Secor  V.  Keller,  4  Duer,  416,  -  1022 
Sedam  v.  Williams,  4  McLean, 

51,  -  -  -  -  504,  535,  552 
Sedgwick  v.  Lewis,  70  Pa.  St. 

217, 352 

Seekell  v.  Fletcher,   53  Iowa, 

333,  -        -      201,  439,  444,  1158 

Seeley  v.  Boehm,  2  Madd.  176,       925 
Seely  v.  Schenck,  2  N.  J.  L.  75,    1018, 

1065 


clvii 


See.] 


TABLE  OF  CASES. 


[Sha. 


Seely  v.  Beck,  42  Mo.  143,        -      111 
Seelyi;  v.  Taylor,  33  La.  Ann. 

1115, 849 

Seguin's  Appeal,  103  Pa.  St.  139,       485 
Seighortner    v.    Weissenborn, 

20  N.  J.  Eq.  172  (rev.  in  part 

in  31  id.  483),  577,  591,  593,  851 

Selden  v.  Bank  of  Commerce, 

3  Minn.  166,  -  -  -  349,  363 
Seldner.  v.  Mt.  Jackson   Nat'I 

Bk.  66  Md.  468,  -  -  399,  696 
Seligman  v.  Kalkman,  17  Cal. 

152,  ...        -       753,  935 

Selking  v.  Jones,  53  Ind.  409,       381 
Sellers  v.  Streater,  5  Jones,  L. 

261,  ....       416,  421 

Sellew  V.  Chrisfield,  1  Handy, 

86, 1117 

Sells  V.  Hubbell,  2  Johns.  Ch. 

394,  .        -        -        -      531,  739 

Selzer  v.  Beale,  19  W.  Va.  274,     969, 

981 
Sessions,  Ex  parte,  2  Up.  Can. 

Chy.  Cham.  360,  -  -  -  743 
Sessums  v.  Henry,  38  Tex.  37,  439 
Settembre  v.  Putnam,  30  Cal. 

490,  167,  187,  792,  795,  930,  931, 

933 
Settle  V.  Davidson,  7  Mo.  604,       420, 

421 
Setzer  v.  Beale,    19  West  Va. 

274,  158,  164,  165,  166,  771,  981 

Seward  v.  L'Estrange,  36  Tex. 

295,  ....       526,  694 

Sewell  v.  Cooper,  21  La.  Ann. 

583, 881 

Sexton  v.  Lamb,  27  Kan.  426,       254, 

780 

V.  Sexton,  9  Gratt.  204,     -      309 

Seybold  v.  Green wald,  1    Dis- 
ney, 425,         -        -        -       322,  370 
Seymour  v.    Butler,   8    Iowa, 
804,         ....       386,  387 

V.  Freer,  8  Wall.  202-215,        43 

V.  Marvin,  11  Barb.  80,     -      489 

V.  Western  R.  R.  Co.  106 

U.  S.  320,        -        - 


Shaaber  v.   Bushong,  105  Pa. 

St.  514, 349 

Shackelford  v.  Shackelford,  32 

Gratt.  481,     552,  553,  554,  559,  500, 

824,  978 
Shackleford  v.    Clark,  78  Mo. 

491,  ....       826,848 

Shafer's  Appeal,  99  Pa.  St.  246,       507 
Shafer's  Appeal,  106  Pa.  St.  49,     289, 

543,  868 
Shafer  v.  Hockheimer,  36  Oh. 

St.  215,  218,    ....    1063 
V.   Randolph,   99  Pa.    St. 

250, 101 

Shaffer  v.   Snyder,   7  S.  &  R. 

503, 623 

Shaler  v.  Trowbridge,  38  N.  J. 

Eq.  595,  -        -        -        544,  790,  791 
Shamburg  v.    Abbott,  113  Pa. 

St.  6,        -        -        -        -         72,  533 

V.  Ruggles,  83  Pa.  St.  148,      153, 

507,  510,  511,  512,  609 
Shanahan,  Re,  6  Biss.  39,  -  754 
Shanks  V.  Klein,  104  U.  S.  18,       281, 

294,  300,  733 
Shannon   v.   Wright,    60    Md. 

520, 994 

Shapard  v.  Lightfoot,  56  Ala. 

506,  -        -  1085,  1086,  1093 

Sharp  V.  Hibbins,  42  N.  J.  Eq. 

543,  -        -        -        545,921,937 

V.  Taylor,  3  Phil.  801,     114,  125, 

126 
Sharpe  v.  Cummings,  2  Dow. 

&  L.  504,        -        -        -        -      181 

V.  Johnston,  59  Mo.  557,     277, 

542 
Shattuck  V.  Lawson,  10  Gray, 

405,         -        -       -        641,  859, 864 
Shatzill  V.  Bolton,  2  McCord, 

L.  478;  3  McCord,  L.  33,       -    1103 
Shaver  v.   Upton,   7  Ired.  L. 

458, 779 

V.   White,   6  Munf.  (Va.) 

110,  -        -  1100,  1101,  1105 

Shaw,   Ex  parte,    1    Glyn.    & 
1016  I      Jam.  127,        -        -        -        -      382 
clviii 


Sha.] 


TABLE  OF  CASES. 


[Sho. 


Shaw  V.  Farnsvvorth,  108  Mass. 

357, 299 

V.  Gait,  16  Irish  Com.  L. 

357, 43 

V.  Gandolfo,  9  La.  Ann. 

32, 819 

V.  McDonald,  21  Ga.  395,     184, 

186,  1044 

—  V.  McGregoiy,  105  Mass. 

96,     317,  339,  347,  510,  515,  519,  520 

V.  Pictou,  4  B.  &  C.  715,  -      489 

V.  Pratt,  22  Pick.  305,      -      385 

V,  State,  56  Iiid.  18S,       269,  315 

V.  Vanduseu,  5  Up.  Can. 

Q.  B.  353,  .  .  .  -  C55 
Sliea  V.  Donahue,  15  Lea,  160,    229, 

812 
Shearer  v.  Paine,  12  Allen,  289,      164, 

165,  166,  738 

V.  Shearer,  98  Mass.  107,       297 

Shearman  v.  Hart,  14  Abb.  Pr. 

358,  ...  -  676,  678 
Shed  V.  Brett,  1  Pick.  401,  -  397 
V.  Pierce,  17  Mass.  623,    -      386 

Shedd  V.  Bank  of  Brattleboro, 


32  Vt.  709, 


377,  380,  558 
1109 


V.  Wilson,  27  Vt.  478,     - 

Sheedy  v.  Second  Nat'l  Bk.  62 

Mo.  17  (21  Am.  Rep.  407),  - 
Sheehy  v.  Graves,  58  Cal.  449, 
V.  Mandeville,   6  Cranch, 

254, 

Sheen,  Ex  parte,  6  Ch.  D.  235, 

843,  846 
Sheenefield  v.  Dutton,  85  111. 

503, 

Sheffield  Gas,  etc.  Co.  v.  Har- 
rison, 17  Bpav.  294, 
Sheldon  v.  Smith,  28  Barb.  593, 
Shellito  V.  Sampson,  61  Iowa, 

40, 

Sliel  mire's  Appeal,  70  Pa.  St. 

281,         ....     946,  1154 
Shelton    v.    Cocke,    3    Muuf. 

(Va.)  191,        -        -        -       700,  705 

V.  Knight,  68  Ala.  598,     770,  772, 

773 


184 

535 
836, 


879 

1012 
339 

404 


Shepard,  Matter  of,  3  Ben.  347,       552 

V.  Pratt,  16  Kan.  209,     43,  1153 

V.  Richards,  2  Gray,  424,      864 

V.  Ward,  8  Wend.  542,     -      331 

Shepherd  v.  Allen,  33  Beav.  577,       597 

V.  Frys,  3  Gratt.  442,        -    1067 

Sheppard  v.  Boggs,  9  Neb.  257,     660, 

661,  974 
V.  Oxenford,    1   K.  &  J. 


491, 


914 


Sherburne  v.  Goodwin,  44  N. 

H.  271, 487 

Sheridan  v.  Medara,  10  N,  J. 

Eq.  469,  ....        47 

Sherman  v.  Christy,  17  Iowa, 

322,         -        -      315,  346,  537,  1051 
V.  Elder,  1  Hilton  (N.  Y.), 

178,         -        -        -        -     139,  140, 

V.  Kreul,  42  Wis.  33,     109,  343, 

750,  1055,  1094 
Sherrod  v.  Langdon,  21  Iowa, 

518,  ....      101,  102 

Sherry  v.  Gilmore,  58  Wis.  324,     296 
Sherwood  v.  St.  Paul  &  Chi. 

R'y,  21  Minn.  127,  -        -      301 
V.  Snow,  46  Iowa,  481  (26 

Am.  Rep.  155),       341,  348,  380,  370, 

437,  447 
Shiddell  v.  Messick,  4  B.  Mon. 

157, 794 

Shields  v.  Fuller,  4  Wis.  102,    716,  722 

V.  Oney,  5  Munf.  (Va.)  550,     1050 

Shimer  v.   Huber,    19   Bankr. 

Reg.  414,  -        -        -      559,  560 

Shine  v.  Central  Sav.  Bank,  70 

Mo.  524,   ...        -      193,  655 
Shinnv.    Macpherson,  58   Cal. 

593,  .        -        -        .      545,  790 

Ship  man.  Re,  61  How.  Pr.  518,      835 
Shipwright  v.  Clements,  19  W. 

R.  599, 

Shirley  v.  Fearne,  33  Miss.  653, 
Shirreff  v.  Wilks,  1  East,  48, 


663 

416 

347, 

609 


Shoe    and     Leather  Bank    v. 
Herz,  89  N.  Y.    629  (allg.  24 
Hun,  260),       .        -        -        - 
cliz 


613 


Sho.] 


TABLE  OF  CASES. 


[Sim. 


Shoemaker  v.  Benedict,  11   N. 

Y.  176, 704 

V.  King,  40  Pa.  St.  107,     503,  510 

Shorbe    v.    Beaudry,  5G    Cal. 

44G, 5,  6,  5S9 

Short    V.   Magruder,   22    Fed. 

Rep,  46, 1131 

V.  Stevenson,  63  Pa.  St.  95,       307 

Shorter  v.   Hightower,  48  Ala. 


526, 


1059 


Skillen  v.  Jones,  44  Ind.  136,  -  742 
Shott  V.  Streatfield,   Moo.    & 

Rob.  9, 91 

Shotwell  V.  Miller,  1    N.  J.  L. 

95  [81], 385 

Shouse,  Ex  parte,  Crabbe,  482,  5G2 
Shropshire  v.  Shepperd,  3  Ala. 

733, 43 

Shubrick  v.  Fisher,  2  Desaus. 

148, 27 

Shufeldt  V.   Seymour,   21   111. 

524, 1074 

Shulte    V.  Hoffman,    18  Tex. 

678, 1008 

Shurlds  V.  Tilson,   2  McLean, 

458, 618 

Shurtleff  v.  Willard,   19  Pick. 

202, 547 

Siegel  V.  Chidsey,  28  Pa.  St. 

279,  -  -  439,  448,  567,  583 
Siegfried  v.  Ludwig,  102  Pa. 

St.  547, 695 

Sieghortner  v.  Weissenborn,  20 

N.  J.  Eq.  172  (partly  reversed 

in  \V.  V.  Seighortner,  21  id. 

483),  ...  -  277,  993 
Siffkiu    V.    Walker,   2  Camp. 

308,  ....       439,  440 

Sigler  V.   Knox  Co.   Bank,   8 

Oh.  St.  511,    -        -        -       5G1,  568 

V.  Piatt,  16  Mich.  206,      -      704 

Sigourney  v.  Munn,    7  Conn. 

11;  id.  824,  -  281,291,295,974 
Sikes  V.  Parker,  65  N.  Ca.  232,    1170, 

1171 

V.  Work,  6  Gray,  433,       64,  287, 

864,  868 


SiUitoe,  Ex  parte,  1  Gl.  &  J. 

374,  ....  836,  837 
Silver  v.  St.  L.  I.  M.  &  S.  R'y, 

5  Mo.  App.  381  (afld.  72  SIo. 

194), 865 

Silverman  v.  Chase,  90  111.  37,     347, 

510,  515,  749,  750 

Silvers  v.  Foster,  9  Kan.  56,    -     349, 

1094 
Silveus  V.  Porter,  74  Pa.  St. 

448, 136 

Sim  V.  Sim,  11  Irish  Ch.  310,  -  957 
Simmondsv.  Swaine,  1  Taunt. 

549, 234 

Simmons  v.  Curtis,  31  Me.  373,      583, 

587 

V.  Leonard,  3  Hare,  581,  -     212, 

245 
Simonds  v.  Speed,  6  Rich.  L. 

390, 1049 

V.  Strong,  24  Vt.  642,       623,  624 

Simonton  v.  McLain,  37  Ala. 

663, 921 

Simpson,  In  re,  9  Ch.  App.  572,      563 

V.  Baker,  2  Black,  581,     -      446 

V.  Chapman,  4  De  G.  M. 

6  G.  154,        -        -        -      745,  798 

V.  Feltz,    1   McCord,  Ch. 

213  (16  Am.  Dec.  602),  36,  43,  788 
V.  Henniug,  L.  R.  10  Q.  B. 

406, 841 

V.  Leech,  86  111.  286,         -      290 

V.    McDonough,     1     Up. 

Can.  Q.  B.  157,      -        -        -      348 

V.  Schulte,  21   Mo.  App. 

639,  ....  456,  749 
Simrall    v.    O'Bannons,    7    B. 

]\Ion.  60S,  -  -  849,  882,  884 
Sims  V.  Bond,  5  B.  &  Ad.  389,  1020 
V.  Brittain,  4  B.  &  Ad. 

375, 1020 

V.  Jacobson,  51  Ala.  186,    1081, 

10G5 

V.  McEwen,  27  Ala.   184,     680, 

1014 

V.   Ross,    8   Sm.    &  Mar. 

557,         ...        -  1026,  1072 


clx 


Sim.] 


TxVBLE  OF  CASES. 


[Smi. 


Sims  V.  Smith,  11  Rich.  (S.  Ca.) 

L.  5G5,  -  596,  G81,  682,  684,  1044 
V.  Willing,  8  Serg.  &  R. 

103.  -        -        -         G7,  259,  263 

Simson  v.  Cooke,  1  Bing.  452,     497, 

653 
V.  Ingham,  2  B.  &  C.  65; 

3  Dow.  &  Ry.'  249,      489,  490,  491, 

501 
Sinclair  v.  Wood,  3  Cal.  98,     -  1147, 

1158 
Singer  v.  Heller,  40  Wis.  544,     594, 

780 
Singer  Mfg.  Co.  v.  Allen,   122 

Mass.  467,  ....  655 
Singerly  v.  Fox,  75  Pa.  St.  112,  935 
Sinsheimer  v.  Tobias,  53  N.  Y. 

Superior  Ct.  508,  -  -  -  636 
Sir  Charles  Raymond's  Case, 

cited  in  2  Rose,  252,  255,  -  167 
Sirrine  v.  Briggs,  31  Mich.  443,  403, 
405,  1101,  1106,  1113 
Sitler    V.    Walker,    1    Freem. 

(Miss.)Ch.  77,  -  -  -  1109 
Sizer  v.  Ray,  87  N.  Y.  220,  507,  643 
Skaife  v.  Jackson,  1  B.  &  C. 

421, 383 

Skaunel  v.  Taylor,  12  La.  Ann. 

773,  ....  518,  528 
Skidmore  v.  Collier,   8    Hun, 

50. 794 

Skillen  v.  Jones,  44  Ind.  136,  739 
Skilluian  v.  Lachman,  23  Cal, 

199,  -        -        163,  329,  343,  585 

Skinner  v.  Dayton,  19  Johns. 

513  aO  Am.  Dec.  286),  (rev.  5 

Johus.  Ch.  351),       72,  73,  324,  416, 

420,  421,  577 
V.  Shannon,  44  Mich.  86 

(38  Am.  Rep.  232),         -       -    1131 

V.  Stocks,  4  B.  &  Aid.  437,    1019, 

1021 

V.  Tinker,  34  Barb.  333,      571 

Skipp  V.  Harwood,  2  Swanst. 

586,  ....  584,  1111 
Skipwith  V.  Lea,  16  La.  Ann. 

247, 718 


Skirving  v.  Williams,  24  Beav. 
275, 600 

Slade  V.  Paschal,  67  Ga.  541,     47,  48, 

98 
Slater  v.  Lawson,  1  B.  &  Ad. 

396,  ....  704,  746 
Slatter  v.  Carroll,  2  Sandf.  Ch. 

573,  ....  747,  750 
Slaughter  v.  Doe  ex  d.  Swift, 

67  Ala.  494,  ....  296 
V.  Huling,  4  Dana,  424,    -      595 


Sleech's  Case.     See  Devaynes 

V.  Noble. 
Slemmer's  Appeal,   58  Pa.  St. 

168,  -        -        -        -        -      577 

Slipper  V.  Stidstone,  5   T.  R. 

493;  1  Esp.  47,      -       -       -      723 
Sloan  V.    Bangs,  11  Rich.  (S. 
Ca.)  L.  97,      -        -       -   1019,  1164 

V.  McDowell,  71  N.  Ca.  356,    383, 

1079,  1083,  1084 

V.  McDowell,   24  Oh.  St. 

209, 425 

V.  Moore,  37  Pa.  St.  217,      276, 

404,  428,  594,  991,  994,  998 

V.  Owens,   Lane  &  Dyer 

407 
833 


Mach.  Co.  70  Mo.  206,   - 
Slocum,  Re,  5  Fed.  Rep.  50, 
V.  Hooker,   13  Barb.  536 

(reversing  s.  C.  12  id.  563),  -  148 
Slocumb  V.    Lizardi,    21    La, 

Ann.  355,  ....  398 
Sloo  V.  Lea,  18  Oh.  279,    -        .      535 

V.  Powell,  Dallam,  467,    -      421 

V.  State  Bank  of  111.  2  111. 

428,  ....  377,  414 
Slutts  V.  Chafee,  48  Wis.  617,  1049 
Smale  v.  Graves,  19  L.  J.  (N. 

S.)  Ch.  157 ;  14  Jur.  662,  -  668 
Small  V.   Riddle,  31  Up.   Can. 

C.  P.  373,        -       -       -       852,  881 
Smead  v.  Lacey,  1  Disney,  239,     504, 
510,  511,  512,  520,  558,  848 
Smelting  Co.  v.  Smith,  13  R.  L 

27  (43  Am.  Rep.  3),  .  -  422 
Smith's  Estate,  11  Phila.  131,  -     580, 

731 
cLxi 


SMI.] 


TABLE  OF  CASES. 


[Smi. 


1105 

825 
971 

802 


603 
841 


Smith,  Ex  parte,  3  Madd.  03,  -      263 

,  Ex  parte,  1  Glyn.  &  J.  74,      838 

,  Matter  of,  16  Jolins.   103 

(1  Am.  Ijead.  Cas.  457),  (now- 
overruled),     -        -        -        - 

,  Re,  13  Bankr.  Reg.  500,  - 

,  Re,  16  Bankr.  Reg.  113,  - 

V.  Allen,  18  Johns.  245,    - 

V.  Andrews,  49  111.  28,     -     184. 

186 

V.  Ayer,  101  U.  S.  320,     - 

V.  Bailey,  11  Mod.  401,     - 

V.    Barringer,  74  N.  Ca. 

665,         ....       964,  967 

V.  Barrow,  3  T.  R.  476,      722,  868 

V.  Black,  9  Serg.  &  R.  143 

(11  Am.  Dec.  686),  -  -  535 
V.  Bkitchford,  3  Ind.  184 

(53  Am.  Dec.  504),  -        -     1070 

V.  Bodine,  74  N.  Y.  30,     -        43 

V.  Book,  5  Up.  Can.  Q.  B. 

(O.  S.)556,     -        ...      274 

V.  Bryan,  60  Ga.  628,     1057, 1085 

V.  Bryson,  Phil.   (N.  Ca.) 

Eq.  257, 923 

V.   Buruham,    3  Sumner, 

435,         ....       150,  301 

V.  Cahoon,  37  Me.  281,     -    1104 

V.  Canfield,  8  Mich.  493,  -     1049 

V.  Chenault,  48  Tex.  455,      1131, 

1133 

V.  Cisson,  1  Colorado,  29,      334, 

1146 

V.  Collins,  115  Mass.  888,       318, 

328,  339,  341,  370,  440,  450,  451, 

1154 
V.  Cooke,  31  Md.  174,     1049,  1050 

V.   Cooper,   5   Abb.   New 

Cas.  274,         -        -        -       669,  672 

V.  Craven,  1  Cr.  &  J.  500,        80 

V.  Cropper,  L.  R.  10  App. 


Cas.  249,         .... 

V.  Danvers,  5  Sandf.  669, 

V.  Dennison,  101  111.  531, 

V.  Duke  of  Chandos,  Bar- 

nardiston,  419;  3  Atk.  453,  - 


1071 

283 

680, 

687 


213 
clxii 


Smith  V.  Edwards,  3  liar.  &  G. 

(Md.)411,  -  -  -  -  1149 
V.    Edwards,    7  Humph. 

(Tenn.)  106,     ....      551 

V.  Emerson,  43  Pa.  St.  456,     1111 

V.  Evans,  37  Ind.  536,     184,  187, 

937 

V.  Everett,  136  Mass.  304,      595 

V.  Everett,  27  Beav.  446,       658, 

659,  664,  665,  743 
V.  Exchange  Bank,  26  Oh. 

St.  141, 537 

V.  Fagan,  17  Cal.  178,        73,  591 

V.  Felton,  43  N.  Y.  419,    -      453 

V.  Garth,  33  Ala.  368,        .        47 

V.  Goldsworthy,    4  Q.  B. 

430, 434 

V.  Gregg,  9  Neb.  313,        -    1061 

V.  Griffith,  3  Hill.  333,      -    1155 

V.  Hall,  5  Bo.sw.  319,        -      394 

V.  Harris,  76  Ind.  104,       -    1131 

V.  Hazleton,  34  Ind.  481,     761, 

780,  810,  9:38 

V.  Hill.  13  Ark.  173,  -      437 

V.  Hill,  45  Vt.  90  (13  Am. 

Rep.  189),  ...  -  98 
V.  Hoffman,  3  Cranch,  C. 

C.  651, 446 

V.  Hollister,  33  Vfc.  695,    76, 1033, 

1135,  1146 

V.  Hood,  4  lU.  App.  360,     446, 

507,  503 
V.  Howard,  20  How.  Pr. 

121,         ....      556,  569 

V.  Howell,  6  Exch.  730,   -     638, 

640 

V.  Hulett,  65  111.  495,        -    1151 

V.    Jackman,    138    Mass. 

143,         -        -        -       -       617,  031 

V.  Jackson,  3  Edw.  Ch.  38,      285 

V.  Jameson,  5  T.  R.  601,  -      487 

V.  Jeyes,  4  Beav.  503,      990,  994 

V.  Jones,  13  Me.  333,         -      345 

V.  Kerr,  3  N.  Y.  144,       393,  416, 

417 
V.  Knight,  71  111.  148  (33 

Am.  Rep.  94),        -         23,  47,  1167 


Smi.] 


TABLE  OF  CASES. 


[Snb. 


Smith  V.  Ledyard,  49  Ala.  279,       703 

V.  Loriag,  2  Oli.  440,        349,  761 

V.  Lowe,  1  Edw.   Ch.  (N. 

Y.)14, 995 

V.  Ludlow,  G  Jolms.  207,       703 

V.  Lusher,  5  Cow.  088,     543,  882, 

884 
-^—  V.  McMicken,  3  La.  Ann. 

819, 1103 

V.  Mallory,  24  Ala.  628,   -     825, 

828 

V.  Moynihan,  44  Cal.  53,         59 

V.  Mules,  9  Hare,  550,     241,  269, 

574,  974 
V.  Mulock,  1  Robt.  (N,  Y.) 

569;  1  Abb.  Pr.  (N.  S.)  374,       575 

V.  Onell,  1  East,  308,        -      755 

V.  Orser,  42  N.  Y.  132  (aff. 

S.  C.  43  Barb.  Ib7),         -        -    1105 

V.  Parkes,   16   Beav.    115,     184, 

723 

V.  Perry,  29  N.  J.  L.  74,     -        43 

V.  Ramsey,  107  Mass.  82,       283 

V.  Ramsey,  6  111.  373,     288,  541, 

790 

V.  Riddell,  87  111.  105,       -      877 

V.  Rogers,   17  Johns.  340,      519 

V.  Shelden,  35  Mich.  42(24 

Am.  Rep.  529),  -  -  534,  695 
V.  Sloan,  37  Wis.   285  (19 

Am.  Rep.  757),      -        -       329,  343 

V.  Small,  54  Barb.  233,     26,  274, 

894 

V.  Smith,  5  Ves.  189,      265,  266, 

284 

V.  Smith,  33  Mo.  557,        -      856 

V.  Smith,  7  Foster  (N.  H.), 

244,  ...  -  101,  445 
V.  Smith,  13  Grant's  Ch. 

(Up.  Can.)  81,  -  -  -  601 
— —  V.  Smyth,  42  Iowa,  493,  -      439 

V.  Stone,  4  Gill  &  J.  310,      415 

V.  Sum  merlin,  48  Ga.  425,        59 

V.  TarltoD,    2    Barb.    Ch. 

336,  -  -  208,  281, 801,  303 
V.  Teer,  21  Up.  Can.  Q.  B. 

412,         ....       637,  640 


Smith  V.  Tupper,  4  Sm.  &  Mar. 
261.  See  Doe  ex  dem.  Smith 
V.  Tupper. 

V.    Turner,  9  Bush,  417,     341, 

418,  533,  527 

V.  Vanderburg,  46  111.  34,       45, 

47,  48,  587,  589 

V.  Walker,  38  Cal.  335,     -      719 

V.  Walker,  57  Mich.  456,     675, 

1136 

V.  Walker,  6  S.  Ca.  100,    -     1018 

V.  Watson,  2  B.  &  C.  401; 

8  D.  &  R.  751,         16,  258,  200,  1110 

V.  Wigley,  3  Moo.  &  Sc. 

174, 497 

V.  Winter,  4  M.  «fe  W.  454,     690, 

691,  698 

V.  Wood,  31  Md.  393,     716.  719, 

722,  724 

V.   Wood,    1    N.   J.    Eq. 

74, 918 

V.  Wright,  5  Sandf.   113 

(affd.   in  part,  4  Abb.  App. 
Dec.  274),       .        .       .       .  29,  66 

Smitha    v.    Cureton,    31    Ala. 

652, 331 

Smock  V.  Pierson,  68  Ind.  405,  657 
Smyth,  Ex  parte,  3  Dea.  597,     838, 

843 

V.  Harvie,  31  111.  63,  -      709 

V.  Strader,  9  Porter  (Ala.), 

446 ;  4  How.  (U.  S.)  404,      626,  691, 

883,  884 
V.  Strader,  4  How.  (U.  S.) 

404 ;  S.  C.  9  Porter  (Ala.),  448,     626, 

691,  883,  884 
Snaith  v.  Burridge,  4  Taunt. 

684, 1046 

Snarr  v.  Small,    13  Up.    Can. 

Q.  B.  125,  ....  390 
Suead   v.   Barringer,  1    Stew. 

(Ala.)  134,  -  .  .  156,  157 
Sueed.  v.  Kelley,  3  Dana,  538,       195 

V.  Mitchell,  1  Hayw.  (N. 

Ca.)289,  ....      543 

V.  Wiester,  2  A.  K.  Mar. 

(Ky.)  277,        -        .        491, 495,  525 


clxiii 


Sne.] 


TABLE  OF  CASES. 


[Spb. 


566 

886 

968 

259, 


912 


Snell  V.  Crowe,  3  Utah,  20,      -   1105, 

1103,  1113 

V.  De  Land,  43  HI.  323,    -        29 

V.  Dwight,  120  Mass,  9,     114,  119 

Sniffer  v.  Sass  (1828),        -        -      825 
Snodgrass  v.  Reynolds,  79  Ala. 

452, 78 

Snow  V.  Howard,  35  Barb.  55,    315, 

346,  1051 
Snowball,   Ex  parte,   L.   R.  7 

Ch.  App.  534, 
Snyder  v.  Baber,  74  Ind.  47,   - 

V.  Hall,  10  111.  App.  235,  - 

V.  Lunsf  ord,  9  W.  Va.  223, 

261,  347,  410,  5G5 

V.  Walford,  33  Minn.  175,      302 

Society  of  Prac.  Knowledge  v. 

Abbott,  2  Beav.  559,      - 
Sodiker  v.   Applegate,  24  W, 

Va.  411  (49  Am.  Rep.  252),   - 
Sohier  v.  Johnson,    111  Mass. 

238,         -        198,  057,  659,  671,  673 
Sollee  V.  Meugy,  1  Bailey  (S. 

Ca.),  620,        .... 
Solly    V.   Forbes,    2  Brod.    & 

Bing.  38,         .... 
Solomon     v.     Kirkwood,     55 

Mich.   256    (as    Solomon  v. 

Hollander  in  21  N.  W.  Rep. 

336),         -       577,  578,  618,  020.  622 

V.  Solomon,  2  Ga.  18,       26,  541, 

760,  788 
Solomons  v.  Medex,   1  Stark. 

191,         ....  1032,  1033 
Solvency  Mut.  Guarantee  Co. 

V.  Freeman,  7  H.  &  N.  17,    -      049 
Somerby  v.  Buntin,  118  Mass. 

279,         -        -        26,  32,  1012,  1013 
Somerset    Potters'    Works    v. 

Miuot,  10  Cush.  592.     104,  825,  832, 

837,  838 
Soper  V.  Fry,  37  Mich.  236,      -      377 
Sorg  V.  Thornton,  1  Cin.  Supe- 
rior Ct.  Rep.  383,  -        -       370,  440 
Soule  V.  Frost,  76  Me.  119,       -      808 

V.  Hay  ward,  1  Cal.  345,     258,  277 

894 


43 


650 


386 


Soules  V.  Burton,  36  Vt.   652,    761, 

762,  1138 

South    Boston    Iron    Co.     v. 
Holmes,  4  Cliff.  313,      -        -      825 

South  Canadian  Bank  v.  Case, 
8  B.  &  C.  427,         -       .      444,  445 

South  Wales  Atlantic  Steam- 
ship Co.,  Re,  2  Ch.  D.  763,    -         7 

Southard   v.   Lewis,    4    Dana, 
148,         ....      746,  747 

V.  Steele,   3  Mon.    (Ky.) 

435,  -  -  .  336,  413, 1088 
Southern  v.  Grim,  67  111,  106,  -  618 
Southern  Steam  Packet  Co.  v. 

Magrath,  McMull.  (S.  Ca.)  93,  434 
Southmayd's  Appeal  (Pa.  1837), 

8  Atl.  Rep.  72,  -  -  -  981 
Southmayd  v.   Southmayd,  4 

Montana,  100,  -  -  163,  209 
Southwick  V.  Allen,  11  Vfc.  75.     576, 

619,  623 

V.    McGovern,    28  Iowa, 

533,      -     608,  618,  1151,  1153,  1155, 

1156,  1157 
Spalding  v.  Black,  22  Kan.  55,     1108 

V.  Mure,  6  T.  R.  363,        -      746 

V.  Wilsou,  80  Ky.  589,     281,  290 

453,  823 
Sparhawk  v.  Drexel,  12  Baukr. 

Reg.  450,         -        ...      195 

V,  Russell,  10  Met.  305,    826,  828 

Sparman  v.  Keim,  83  N.  Y.  245,  144 
Sparrow  v.  Chisman,  9  B.  &  C. 

241,         ....    393,  1035 

V.  Kohn,  109  Pa.  St.  359,       198 

Spaulding  v.   Holmes,   25  Vt. 

491,  -  .  .  -  -  904 
V.   Ludlow  Woolen  Mill, 

30  Vt.  150,      -        -      389,  621,  623 

V.  Smith,  10  Me.  303,        -     1168 

Spaunhorst  v.  Link,  40  Uo.  197,      347, 

503,  585 
Speak  V.  Kinscy,  17  Tex.  301,  1125 
Speake  v.  Barrett,  13  La.  Ann. 

479, 623 

V.  Prewitt,  6  Tex.  252,     150,  152, 

1019,  1022 


clxiv 


Spe.] 


TABLE  OF  CASES. 


[Sta. 


Speake  v.  White,  14  Tex.  304,  700 
Spear  v.  Gillet,  1  Dev.  (N.  Ca.) 

Eq.  4G6,  ....  420 
V.  Newell,  2  Paine,  C.  C. 

2G7, 899 

V.  Newell,  13  Vt.  388,      849,  91-1 

Spears  v.  Lord  Advocate,  6  CI. 

&  Fin.  180,     ....      831 

V.  Toland,  1  A.  K.  Mar. 

(Ky.)203,        -        -       331,628,700 

Speer  v.    Bishop,    24  Oh.    St. 

598,  ....       100,  628 

Speis;hts  V.Peters,  9  Gill  (Md.), 

472,  -  -  -  997,  998,  1002 
Spence  v.  Whitaker,  3  Porter 

(Ala.),  297,  -  -  -  187,  777 
Spenceley  v.  Greenwood,  1  F. 

&  F.  297,        .... 
Spencer  v.  Billing,  16  Oh.  St. 

75, 

Sperry,  Ex  parte,  1  Ashm.  347, 
Spiers  v.  Houston,  4  Bligh,  N. 

R.  515,  -  -  -  -  650,  656 
Spiess  V.  Rosswogg,   16  Jones 

&Sp.  135;  63  How.  Pr.  401, 
Spiro  V.  Paxton,  3  Lea  (Tenn.), 

75  (31  Am.  Dec.  630),     - 
Sprague,  Ex  parte,  4  DeG.  M. 

&  J.  866,         .... 

V.  Ainsworth,  40  Vt.  47, 


526 

107 
832 


305 


-    1131 


541 
444, 
448,  451 

V.  Zunts,  18  Ala.  382,        -      356 

Sprague  Mfg.  Co.  v.  Hoyt,  29 

Fed.  Rep.  421,  -  -  -  294 
Sprawles  v.  Barnes,  1  Sm.   & 

Mar.  (iMiss.)  629,  -  -  725,  1029 
Spring  V.  Gray,  6  Pet.  151,  -  943 
Spring  Valley  Water  Works  v. 

Schottler,  63  Cal.  69,  118,  -  661 
Springer  v.  Cabell,  10  Mo.  640,     302, 

851,  856 

V.  Shirley,  11  Me.  204,      -      528 

Sprout    V.   Crowley,   30    Wis. 

187,         -        -  28,  852,  874,  876 

Spruhen  v.  Stout,  52  Wis.  517,       437 
Spnrck  v.  Iieonard,  9  111.  App. 

174,  -        -        615,  624,  626,  694 

cl 


Spurr  V.  Cass,  L.  R.  5  Q.   B. 

656,         -        -        -  1019,  1023 

V.  Russell,  59  N.  H.  338,     557,  558 

Squires  v.  Anderson,'  54  Mo. 

103, 229 

Staats  V.  Bristow,  73  N.  Y.  264,     180, 

186,  291,  1099, 1102,  1111,  1112,  1117, 

1122 

V.  Howlett,  4  Den.  559,     197,  073 

Stables  v.  Eley,  1  C.  «&;  P.  614,     102. 

463,  470 
Stacey  v.  Decy,  2  Esp.  469,  n. 

(s.  c.  as  Stracey  v.  Deey,  7  T. 

R.  361,  n.  c),  -  -  -  -  1083 
Stadler  v.  Allen,  44  Iowa,  198,  291 
Stafford  v.  Gold,  9  Pick.  533,  722 
Stafford   Bank  v.  Palmer,   47 

Conn.  443,  -  -  -  -  4,  7 
Stahl  V.  Stahl,  2  Lans.  60,  747,  750 
Stainbank  v.  Fernley,  9  Sim. 

556,  ....  595,  897 
Stainer  v.  Tysen,  3  Hill,  279,  -  347 
Stainton  v;  Carron  Co.  18  Beav. 

146,         ....       924,  926 

v,  Carron  Co.  24  Beav.  346,       964 

Stair  v.  Richardson,  108  Ind. 

429,  ....  689,  690 
Stall  V.  Cassady,  57  Ind.  234,  607,  613 
V.  Catskill  Bk.   18  Wend. 

466  (affirms   Catskill  Bk.'v. 

Stall,  15  id.  364),  349,  852,  358,  1153 
Stallings  v.  Corbett,  2  Spears 

(S.  Ca.),  L.  G13,  -  -  -  763 
Stanberry  v.  Cattell,  55  Iowa, 


617, 


r35 


Standbridge  v.    Catanach,    83 

Pa.  St.  368,  -  -  -  -  1170 
Stanford  v.  Lockwood,  95  N. 

Y.  5S2,  5S8,  -  -  -  -  733 
Stanhope  v.  Suplee,  2  Brewst. 

(Pa.)  453,  -  -  718,741,1000 
Stannary  v.  Smith,  40  Vt.  513,  64 
Stanton   v.    Buckner,    24    La. 

Ann.  391,        -        ...      856 

V.  Lewis,  20  Conn.  444,    686,  687 

V.  Westover  (N.  Y.  188(3), 

4  N.  E.  Rep.  529.   -       551,  560,  563 

XV 


Sta.] 


TABLE  OF  CASES. 


[Ste. 


Stauwood  V.  Owen,  14  Gray, 

195,  -  -  -  598,  GOl,  602 
Staples  V.  Sprague,  75  Me.  458,       32, 

432 
Stapleton  v.  King,  33  Iowa,  28 

(11  Am.  Rep.  109),  -  -  .  G2 
Star  AVagon  Co.  v.  Swezey,  52 

Iowa,  394 ;  59  id.  609,    -      399,  090, 

708 
Starbuck  v.   Shaw,   10   Gray, 

492,  -        -        -        -  26,  70,  850 

Stark  V.  Corey,  45  HI.  431,    322,  348, 

447,  449 

V.  Noble,  24  Iowa,  71,       -      677 

Starke  v.  Kenan,  11  Ala.  818,  1146 
Starr  v.  Case,  59  Iowa,  491,     224,  2G9, 

455,  499,  715,  763,  770,  773,  798,  973 

V.  Dugan,  22  Md.  58,         -        54 

V.  Mayer,  60  Ga.  546,        -    1117 

Starrs  v.  Cosgrave,   12  Duval 

(Canada),  571,  -  -  -  651 
State  V.  Baldwin,  31  Mo.  561,      734 

V.  Baldwin,  27  Mo.  103,    -      734 

V.  Bierman,    1  Strob.   L. 

256, 488 

V.  Butman,  61  N.  H.  511,       277 

V.  Coleman,    Dudley  (S. 


Ca.),  L.  32,     -        -        -        -  488 

V.  Donnelly,  9  Mo.    App. 

519,         .        1       ...  43 

V.  Gerhardt,  3  Jones  (N. 

Ca.),  L.  178,    -       -       -       178,  269 

V.  How,  1  Mich.  512,        -  4 

V.  Linaweaver,   3  Head, 

61, 1127 

V.  Mohr,  68  Mo.  303,          -  48H 

V.  :Myers,  9  Mo.  App.  44,  734 

V.  Neal,  27  N.  H.  131,        -  488 

V.  Parker,  34  N.  J.  L.  71,  175 

V.  Penman,  2  Desaus.  1,  -  1168 

■  V.  Quick,  10  Iowa,  451,     -  586 

V.   Thomas,  7  Mo.   App. 

205,         ....     5G0,  1133 

V.  Wiggin,  20  N.  H.  449,  -  100, 

1150 

.  V.  Williams,  103  Ind.  235,  488 

V.  Woods,  36  Mo.  73,        -  734 


State  ex  rel.  v.  Bowden,  18  Fla. 
17, 1131 

V.  Donegan,  12  Mo.   App. 

190  (affd.  83  Mo.  374),  -      734,  736 
V.  Emmons,  99  Ind.  452,  -    1181 


V.  Finn,  11  Mo.  App.  546,     257, 

260,  1110 

V.  Merritt,  70  Mo.  275,    -    1019 

V.  Spencer,  64  Mo.  355  (27 

Am.  Rep.  244),  -  -  -  1131 
State  F.   Ins.    Co.,  Mei-edith's 

Case,   1  B.  &  P.   New  Rep. 

510, 323 

Stauffer,  Succession  of,  21  La. 

Ann.  520,  ....  1131 
Stead  V.  Salt,  3  Bing.   101 ;  10 

Moore,  389,  -  -  -  336,  381 
Stead  well  v.  Morris,  61  Ga.  97,     959, 

963 
Steamboat  Orleans  v.  Phoebus, 

11  Pet.  175,  ...  -  908 
Stearns  v.  Burnham,  4  Me.  84,       365 

V.  Haven,  14  Vt.  540,        43,  91, 

1145 

V.  Houghton,  38  Vt.  583,  -     716, 

719 
Stebbins  v.  Harmon,   17  Hun, 

445, 978 

V.  Willard,  53  Vt.  665,     184,  446, 

692,  693,  769,  770 
Stecker  v.  Smith,  46  Mich.  14,     447, 

451 
Stedman  v.  Feidler,  20  N.  Y. 

437, 70 

V.  Smith,  8  E.  &  B.  1,       -      274 

Steel  V.  Jennings,   Cheves  (S. 

Ca.),  183,  -  -  -  370.  447 
Steele  v.  First  Natl.   Bank,  60 

111.  23,  -  -  -  -  326,  381 
v.  Grossmith,  19  Grant's 

Ch.  (Up.  Can.)  141,  -  -  996 
V.   Jennings,    1    McMull. 

(S.  Ca.)  297,  -  -  -  -  703 
V.    Stuart,    L.   R.   2  Eq. 

84, 395 

Stegall  V.  Coney,  49  Miss.  761,     403, 

566,  1038 
clxvi 


Ste,] 


TABLE  OF  CASES. 


[Ste, 


Stegman  v.  Berryhill,  72  Mo. 

307,         -       -       -       766,  770,  780 
Steiglitz  V.  Egginton,  Holt,  N. 

P.  141, 416 

Stein  V.  La  Dow,  13  Minn.  412,     338, 

839,  340 

V.  Robertson,  80  Ala.  286,       86, 

143,  181 
Steinhart  v.    Fyhrie,   5    Mon- 
tana, 463,       ...       338,  339 
Stephens  v.  Orman,  10  Fla.  9,     216, 

309,  794,  961 

V.  Parkhurst,  10  Iowa,  70,     1091 

V.  Reynolds,    5  H.  &  N. 

513;  IF.  &F.  739;  2  id.  147,     341, 

443 

V.  Thompson,  28  Vt.   77,     523, 

524 
Stephenson  v.  Chiswell,  3Ves. 

566, 748 

V.  Jackson,  9  Bankr.  Reg. 


378;  2  Hughes,  204, 


841 


Sterling  v,  Brightbill,  5  Watts, 

229  (30  Am.  Dec.  304),  -  -  848 
Stern's  Appeal,  95  Pa.  St.  504,     740, 

794,  798 
Sternberg  V.  Callanan,  14  Iowa, 

251,  ....  507,  510 
Sterndale  v,  Hankinson,  1  Sim. 

893, 497 

Sterne  v.  Bentley,  3  How.  Pr. 

331, 380 

Stettauer  v.  Carney,  20  Kan. 

474, 42 

Stettheiraer  v.  Killip,  75  N.  Y. 

282, 958 

Steuben  Co.  Bank  v.  Alburger 

(N.   Y.    1880),  4  N.  E.   Rep. 

341,  ....  351,  364 
Stevpns,    Re,    5    Bankr.    Reg. 

112;  1  Sawy.  397,  -  -  -  828 
V.  Bank  of  Central  N.  Y.  , 

81  Barb.  290,  -  -  -  1099 
V.    Penning,    1   K.    &  J. 

168 ;  6  DeG.  M.  &  G.  223,       -      710 

V.  Cook,  5  Jur.  N.  S.  1415,     781, 

786 


Stevens  v.  Faucet,  24  111.  483,     29,  36, 

39.  43,  257 

V.  Gainesville  Natl.  Bank, 

62  Tex.  499,    -        -        -        -        17 

V.  Lunt,  19  Me.  70,    -        -    1079 

V.  Perry,  113  Mass.  380,   -     847, 

1118 

V.  Rollins,  34  Me.  226,  -     722, 

724 

V.  South  Devon  R'y  Co.  9 

Hare,  313,  ....  43.' 
V.  Stevens,  39  Conn.  474,     HOD 

V.  West,  1  How.  (Miss.) 

308,         ...       -    453a,  841 

V.  Yeatman,  19  Md,  480,  -      980 

Stevenson  v.  Brown,   9  L.  J. 

Chy.  (Up.  Can.)  110,      -        .      338 

V.  Farnsworth,  7  111.  715,  .    1071 

V.  McLean,    11  Up.  Can. 

C.  P.  208,        ....      650 

V.  Mann,  13  Nev.  268,  274,       535 

V.  Mathers,  67  111.  123,     83,  930, 

932 

V.    Sexsmith,    21  Grant's 

Ch.  (Up.  Can.)  355,  .  -  552 
V.  Woodhull,  19  Fed.  Rep. 

575,  -        -        .        .       381,  543 

Steuart  v.  Gladstone,  10  Ch.  D. 

626,  ....  241,  661 
Steward  v.  Blakeway,  L.  R.  4 

Ch.  603,  ....  257,  287 
Stewart's  Appeal,    105  Pa.  St. 

307,  ....  703,719 
Stewart,    Assignment    of,    63 

Iowa,  614,      -        -       -       -      566 

,  Re,  13  Bankr.  Reg.  295,  -    1131 

V.  Bedell,  79  Pa.  St.  336,  -      676 

V.  Behm,  2  Watts,  356,     .      423 

V.  Brown,  87  N.  Y.  350,  -    1131 

V.    Burkhalter,    28    Miss. 

396,  ....  742,  925 
V.  Caldwell,  9  La.  Ann. 

419,         867,  626 

V.    Challacombe,    11    111. 

App.  379,        ....      676 

V.  Erie  &,  Western  Transp. 

Co.  17  Minn.  372,  -        -        .     1028 


clxvii 


Ste.] 


TABLE  OF  CASES. 


[Sto. 


Stewart  v.  Forbes,  1  Hall  &  Tw. 

461 ;  1  Macn.  &  G.  137,  -       181,  215 

V.  nuuter,  1  Handy,  23,     1105, 

1109 
V.  Kerr,  1  Morr.   (Iowa) 

240, 899 

V.  Levy,  36  Cal.  159,       464,  4G8, 

480 
V.  Mcintosh,  4  Har.  &  J. 

233,  -        -        114,  119,  128,  425 
V.  Parker,  18  New  Bruns- 
wick, 223,       -        -        -       349,  3G1 

V.  Piatt,  101  U.  S.  731,     -      179 

V.  Slater,  6  Duer,  83,        -      569 

V.  Sonneborn,  49  Ala.  178,     618, 

625 

V.  Sonneborn,  51  Ala.  126,       620 

V.  Stebbins,  30  Miss.  66,    -     549, 

789 
Stickney  v.   Smith,    5   Minn. 

486, 191 

Stidger    v.   Reynolds,   10  Oh. 

351,  -  -  252,  763, 770,  771 
Stiles  V.  Meyer,  64  Barb.  77 ;  7 

Lans.  190,  -  -  -  -  349 
Stillwell  V.  Gray,  17  Ark.  473,      685, 

713 
Stimson  v.  Lewis,  36  Vt.  91,  76,  933 
V.    Whitney,    130    Mass. 

591,  322,  328,  341,  354,  359,  618 

Stiness  v.  Pierce,  12  R.  L  452,       927 
Stilling     V.     Heintzman,      42 

Midi.  449,  -  -  -  -  1060 
Stirnermaun     v.     Cowing,     7 

Johns.  Ch.  275,  -  -  -  707 
Stitt  V.  Cass,  4  Barb.  92,  -  -  387 
Stix  V.  Mathe%v8,  63  Mo.  371,  1068 
Stoalliugs  V.  Baker,  15  Mo.  481,  61 
Stockdale  v.  Keyes,  79  Pa.  St. 

251, 393 

V.  Ullery,  37  Pa.  St.  486,       988 

Stocken   v.   Davison,    6  Beav. 

371, 

V.  Dawson,    9  Beav,  239, 

and  on  app,  17  L.  J.  Ch.  282, 
Stocker     v.     Brockelbauk,     3 

Mac.  &  G.  250, 


772 

799 

43 


Stocker  v.  Wedderburn,  3  K. 

&  J.  393,         ....    1013 
Stockton  V.  Fry,  4  Gill,  406,    -      471 

V.  Johnson,  6  B.  Mon.  408,       333 

Stockwell  V.   Brewer,  59  Me. 

286, 176 

V.  Dillingham,  50  Me.  442,     348, 

406,  450 
V.  United  States.  13  Wall. 

531  (aff.  3  Cliff.  284),      -       -      468 
Stoddard  v.  Smith,  11  Oh.  St. 

581,         ....      483,  486 

V.  Wood,  9  Gray,  90,        -      629 

Stoildart  v.  Key,  62  How.  Pr. 

137, 198 

V.  McMahan,  35  Tex.  367,    1143, 

1154 

V.  Van  Dyke,  13  Cal.  437,     1094 

Stokes  V.  Hodges,  11  Rich.  Eq. 

138, 781 

Stone,    Ex  parte,  L.  R.  8  Ch. 

App.  914,        -      200,  453,  453a,  841 

V.  Boone,  24  Kan.  337,      -      894 

V.  Chamberlin,  20  Ga.  259,       534 

V.  Dennis,  3  Porter  (Ala.), 

231,         -        -        -        870,871,873 

V.  Fouse,  3  Cal.  293,        873,  890 

V.  Manning,  3  111.  530,      -      108 

V.  Marsh,  Ry.  &  Moody, 

3G4 ;  6  B.  &  C.  551 ;  8  Dow.  & 

Ryl.  71, 

V.  South  Carolina,  117  U. 

S.  430,     

V.  Wendover,  3  Mo.  App. 


247, 


474 

1058 

889 

848 


Stoney  V.  Shultz,  1  Hill(S.  Ca.), 

Ch.  465,  -        -        -        -        - 

Storer    v.      Hinkley,      Kirby 

(Conn.),  147,  -        -        341,  747,  750 
Storm     V.      Cumberland,      18 
Grant's  Ch.  (Up.  Can.)  245,  -     183, 

949 

V.  Roberts,  54  Iowa,  677,  -    1063 

Story  V.  Moon,  3  Dana,  331,     -     764, 

765,  973 
Stothert  v.  Knox,  5  Mo.   113,  -     853, 

856 


clxviii 


Sto.] 


TABLE  OF  CASES. 


[Sun. 


Stoughton  V.  Lynch,  1  Johns. 

Ch.  467,  -        -        237,  789,  790,  791 

V.  Lynch,  2  Johns.  Ch.  209,     787, 

789,  790,  791,  798 

V.  State,  2  Oh.  St.  562,     -      488 

Stout  V.  Baker,  32  Kan.  113.   -     1064 

V.  Fortner,  7  Iowa,  183,   -    1109 

V.  Hicks,  5  Blackf.  49,     -     1070 

V.  Seabrook,  30  N.  J.  Eq. 

187(affd.  without  op.' 32  id. 

820), 952 

V.  Zulick  (N.   J.).  7  Atl. 

Rep.  362,        ....  4 

Stoutenburgh  v.  Vandenburgh, 

7  How.  Pr.  229,  -  377,  380,  1086 
Stovc4d,  Ex  parte,  1  Glyn.  &  J. 

303, 1003 

Stowe  V.   Sewall,    3  Stew.   & 

For.  (Ala.)  67,  -  -  -  860 
Stracey  v.  Deey,  7  T.   R.   361, 

n.  c;  S.  C.  as  Stacey  v.  Decy, 

2  Esp.  469,  n.,  -  -  -  1083 
Strader  v.  White,  2  Neb.  348,  -  44 
Straffin    v.  Newell,    T.  U.    P. 

Charlton,    Ga.     163  (4    Am. 

Dec.  705),  ....  414 
Strang  v.  Bradner,  114  U.  S. 

555  (aff.  89  N.  Y.  299),  -       472,  480 

V.  Hirst.  61  Me.  9,     -       722,  733 

Strange   v.    Graham,    56  Ala. 

614,  -        -        685,  713,  719,  942 

V.  Lee,  3  East,  484,    -       649,  656 

Strangford  v.    Green,   2  Mod. 

228, 336 

Strathy  v.  Crooks,  3  Up.  Can. 

Q.  B.  51,  ....  716 
Strattan  v.  Tabb,   8  111.  App. 

225,  -  -  -  770,  830,  845 
Straus  V.  Kerngood,  21  Gratt. 

584,  -  569,  825,  828,  832,  847 
Strauss  v.  Frederick,  91  N.  Ca. 

121,         ....       740,  824 

V.  Jones,  37  Tex.  313,        -      445 

V.  Waldo,  25  Ga.  641,     192.  205. 

439,  443 
Strecker    v.    Conn,     90     Ind, 

469, 612 


Street   v.  Rigby,  6  Ves.    613, 

618, 233 

Stretch  v.  Talmadge,  65  Cal. 

510, 957 

Stroll  V.  Hinchman,  37  Mich. 

490,         ....       34G,  36S 
Sti-oman  v.  Yarn,  19  S.  Ca.  307,     292, 

416,  417 
Strong  V.  Baker,  25  Minn.  412,       449 

V.  Clawson,  10  III.  31G,     -      927 

V.  Fish,  13  Vt.  277,      411,  412, 

1044 

V.  Lord,   107  111.  25,      294,  297, 

298,  976 

V.  Niles,  45  Conn.  52,        -      454 

V.  Place,  51  N.  Y.  627;  4 

Robt.  385,       -        -        -        -  48,  78 
Stroud  V.  Stroud,  Phil.  (N.  Ca.) 

L.  525,     -        -        -       290,  294,  297 
Struthers  v.  Chrystal,  3  Duly, 

327, 987 

V.  Pearce,  51  N.  Y.  357,   -      305 

Stuart  V.  Lord  Bute,  12  Sim. 

460, 314 

V.  McKithan,    74  111.  122,       978 

Stultzraan  v,  Yeagley,  32  Up. 

Can.  Q.  B.  630,      -        -        -      881 
Stumph  V.  Bauer,  76  Ind.  157,     257, 

260,  1101,  1110 
Stupart  V.  Arrowsmith,  3  Sra. 

&  G.  176,        -        -        -       432,  958 
Sturges  V.  Beach,  1  Conn.  507,     737, 

750,  1160 

V,  Swift,  32  Miss.  239,      861,  b80 

Sullivan  v.  Murphy,  23  Minn. 

6,  1154 

V.  Smith,  15  Neb.  476  (47 

Am.  Rep.  354),       ...      340 

V.  Sullivan,  20  S.  Ca.  79,  -  7 

Summey  v.  Patton,  1  Winst. 

(N.  Ca.)  Eq.  52,      -        -       281,  ^97 
Sumner  v.  Powell,  2  Mer.  30 

(affd.  T.  &  R.  423),        -        .      239 
v.   Hampson,    8   Oh.    328 

(32  Am.  Dec.  722),  -       285,  290 

Sun  Ins.  Co.   v,  Kouutz  Line, 

122  U.  S.  583,         -        -        -      101 
clxix 


SUR,]  TABLE  OF  CASES 

Surrogate  Court,    Re,  44  Up. 


[Tam. 


Can.  Q.  B.  207,  -  -  -  743 
Sutcliffe  V.   Dohrman,   18  Oh. 

181  (51  Am.  Dec.  450),  -  1109,  1111 
Sutlive  V.  Jones,  Gl  Ga.  676,     -     184, 

299,  41G 
Sutro  V.  Wagner,  23  N.  J.  Eq. 

388  (afra.  24  id.  589),  -  591,  994 
Sutton  V.  Dilluye,  3  Barb.  529,       G93 

V.  Gregory,  2  Peake,  150,       841 

V.  Irwiue,   12  Serg.   &  R. 

13, 349,  363 

V.  Mandeville,  1    Cranch, 

C.  C.  2, 979 

Suydani  v.   Barber,   18  N.  Y. 

468  (rev.  6  Duer,  31),  -  535,  537 
V.  Cannon,  1  Houst.  (Del.) 

431,  -        -        -       531,  532,  535 

Swails  V.    Coverdill,    17    lud. 

337, 1024 

Swallow,  The  Steamboat,  01- 

cott,  334,        -        ...        67 

V.  Thomas,  15  Kan.  66,    -     175, 

176 
Swan  V.  Scott,  23  Up.  Can.  Q. 

B.  434, 110 

V.  Stedman,  4  Met.  548,   -     334, 

416,  698 

V.Steele,   7   East,  210;   3 

Smith,  199,  -  -  107,  196,  341 
Swann  v.  Sanborn,  4  Woods, 

C.  C.  625,  -  -  -  47,  95,  105 
Swasey  v.  An  tram,  24  Oh.  St. 

87  (13  Am.  Law  Reg.  (N.  S.) 

577), 138 

Swearingen  v.  Bassett,  65  Tex. 

2G7,  ....  1131,  1133 
Sweeney   v.    Neely,    53   Mich. 

421,         ....      766,  786 

V.  Stanford,  67  Cal.  635,    -     129 

Sweet    V.    Bradley,    24    Barb. 

549,         ....      402,  472 

V.  Ervin,  54  Iowa,  101,     -     1061 

V.  McCounel.  2  Neb.  1,    -      629 

V.  Morrison,  103  N.  Y.  235,      315, 

383,  89a 
V.  Read,  12  R.  L  121,        -     1103 


I  Sweet  V.  Taylor,  36  Hun,  256,  -  716 
Sweetser  v.  French,   2  Cush. 

309  (48  Am.  Dec.  666),        343,  363, 

367 
Sweetzer  v.  Mead,  5  Mich.  107,     407, 

416,  413 
Swinney  v.  Burnside,  17  Ark. 

38, 10G8 

Swire  v.  Redman,  1  Q.  B.  D. 

536,  -  -  -  537,  533,  709 
Switzer  v.  Smith,  35  Iowa,  269,    1114, 

1115 
Syers  v.   Syers,  L.  R.  1  App. 

Cas.  174,  -  -  257,  974,  1011 
Sykes  v.    Beadon,    11   Ch.   D. 

170,  -  -  -  112,  119,  125 
Sylverstein    v.    Atkinson,    45 

Miss.  81,  -  348,  349,  360,  361 
Sylvester  v.  McCuaig,  28  Up. 

Can.  C.  P.  443,  ...  89 
V.  Smith,  9  Mass.  119,      -    1052 

T. 

Tabb  V.  Gist,  1  Brock.  33,    -     161, 

429 

V.  Gist,  6  Call  (Va.),  279,     434, 

435 
Taber  v.  Cannon,  8  Met.  456,  -  441 
Tnft  V.  Buffum,  14  Pick.   322,       585 

V.  Schwamb,  80  111.  289,     181, 

182,  231,  256,  815 

V.  Ward,  106  Mass.  518,     73,  73, 

74 

V.  Warde,  111  Mass.  518,     73,  7i 

Taggart  v.  Phelps,  10  Vt.  318,     416, 

506 
Taitt,  Ex  parte,  16  Ves.  193,  -  825 
Talbot  V.  Pierce,  14  B.   Mon. 

158,  ....       553,  569 

V.  Wilkins,  31  Ark.  411,   -      331 

Talcott  V.  Dudley,  5  111.  437,    -     155, 

583,  754 
Tallis  V.  Tallis,  1  E.  &  B.  391,  676 
Tall  mad ge      v.     Penoyer,     35 

Barb.  130,       -        -        -        -      481 
Tams  V.  Hitner,  9  Pa.  St.  441,       107 
clxx 


Tap.] 


TABLE  OF  CASES. 


[Tay. 


Tapley  v.  Butterfield,  1  Met. 
515  (35  Am.  Dec.  374),  -     384,  403, 

406,  407,  418 
Tappan  v.   Blaisdell,   5  N.  H. 

190,         ....    189,  1114 

V.  Kimball,  30  N.  H.  136,     704, 

705 

V.  Redfield,  1  Halst.  Ch. 

(N.  J.)  339,      -        -        -        -      416 
Tarbel  v.  Bradley,  7  Abb.  New 
Cas.  273,         184,  180,  385,  290.  291, 

407,  823 
Tavbell  v.  Page,  24  111.  46,  -       4 

V.  West,  86  N.  Y.  280,     184,  186, 

291,  974 
Tarlton  v.  Herbert,  4  Ala.  359,  1086 
Tasker  v.  Shepherd,  6  H.  &  N. 

575,         .       -       -     .  708,  709,  730 
Tassey  v.  Church,  4  Watts  & 
S.  141  (39  Am.  Dec.  65),        -      700 

V.  Churcli,  6  Watts  &  S. 

465  (40  Am.  Dec.  575).  -        -      900 
Tatara   v.    Williams,    3  Hare, 

347, 158 

Tate  V.  Mutual  F.  Ins.  Co.   13 

Gray,  79,        -        -        -        -      272 

V.  Tate,  35  Ark.  289,      739,  923, 

924 

V.  Clements.  16  Fla.   339 

(26  Am.  Rep.  709),         -       703,  704 
Tattersall  v.  Groote,  3  B.  &  P. 

131,  -  -  -  -  233,  234 
Tay  V.  Ladd,  15  Gray,  296,  -  427 
Tayler  v.  Scott,  45  Vt.  261,  -  33 
Tayloe  v.  Bush,  75  Ala.  433,  17,  43,  59 
Taylor,  Ex  parte,  8  De  G.  M.  & 
G.  254;  25  L.  J.  Bkr.  35;  3 
Jur.  N.  S.  320,        -        -        -      144 

,  Ex  parte,  3  Rose,  175,      -      845 

V.  Bemis,  4  Biss.  406,        -      657 

V.    Bothin,   5  Sawy.    584 

(8  Reporter,  516),   -        -        -      675 

V.  Castle,  43  Cal.  367,       163,  585 

V.  Cawthorne,  2  Dev.  Eq. 

221, 987 

V.  Church,  1  E.  D.  Smith, 

279;  8N.  Y.  453,   -        -        -    1033 


Taylor  v.  Coffing,  18  111.  422,    -     813, 

814 
V.  Coryell,  13  Serg.  &  R. 

243,  ...  -  336,  416 
V.  Davis,  cited  in  note  to 

Whittaker  v.  Howe,  3  Beav. 

383,  388,  ....  314 
V.  Farmer  (111.  188G),  4  N. 

E.  Rep.  370,  -  290,  452,  821,  822 
V.  Fields,  4  Ves.   396  (ex- 


plained in  15  id.  559,  n.),     845, 1111 

—  V.  Gilleau,  23  Tex.  508,     -    100(5 

—  V.  Hare,  1  B.  &  P.  N.  R. 

260, 809 

—  V.  Haylin,  2  Bro.  C.  C.  310,       962 

—  V.  Heudersou,  17  S.  &  R. 

453,  ....    1093,  1169 

—  V.  Herring,  10  Bosw.  447,      979 

—  V.  Hill,  36  Md.  494,     323,  380,  6 13 

—  V.  Hillyer,  3  Bluckf.   433 

(26  Am.  Dec.  430),        847,  365,  647, 

694,  701 

—  V.  Holman,  1  Mill  (S.  Ca.), 

173, 889 

—  V.  Hutchison,    25    Gratt. 


536  (18  Am.  Rep.  699),  -     582,  798, 

974,  977 

V.  Jarvis,  14  Up.  Can.  Q. 

B.  128,     ...        -    155,  1114 

V.  Jones,  42  N.  H.  35,     317,  389, 

465 

V.  Love,  43  N.  J.  L.  143,  -      175 

V.  McDonald,  4  Oh.  149,  -   1117, 

1118 

V.  Morrison,  7  Dana  (Ky.), 

241,         -        -        -        942,948,952 

V.  Penny,  5  La.  Ann.  7,   -      158 

V.  Post,  30  Hun,  446,        -      500 

V.  Rundell,  1  Ph.  222  (aff'g 


1  Y.  &  C.  C.  C.  128),      - 
—  V.  Stbt.  Robt.  Campbell, 


314 
1020 


20  Mo.  254,     .        -        - 

V.  Shaw,  2  Sm.  &  Stu.  12,       958 

V.  Smith,  3  Cranch,  C.  C. 

241, 854 

V.  Sotolingo,    6  La.  Ann. 

154, 43 

clxxi 


Tay.] 


TABLE  OF  CASES. 


[Tna 


Taylor  v.  Taylor,  28  L.  T.  189,  912 
V.  Taylor,   3  Murph.    (N. 

Ca.)TO. 181 

V.  Tonne,  3  Har.  &  J.  505,        44 

V.  Webster,  39  N.   J.   L. 

102,         ...        -     317,  1155 

V.  Wilson,  58  N.  H.  465,  -      105 

V.  Young,  3  Watts,  339,  -     400, 

620 

V.  Young.  2  Bush,  438,     780,  788 

Teague  v.  Hubbard,  8  B.  &  C. 

315, 882 

Tebbetts  v.  Dearborn,  74  Me. 

392, 791 

Teed  v.  Ehvorthy,  14  East,  210,  148 
Tell  V.  Beyer,  38  N.  Y.  161, 162,  275 
Temple  v.   Seaver,    11    Cush. 

314,  -  -  -  691,  882,  884 
Tench  v.  Roberts,  6  Madd.  145,  110 
Tennant,   Ex  parte,  G  Ch.  D. 

303, 21,  47 

Teuney  v.  Foote,  95  111.  99,     112,  128 

V.  Johnson,  43  N.  H.  144,       562, 

563,  824,  1114,  1115 
V.      New    Engl.      Protec. 

Union,  37  Vt.  64,  -  72,  76,  580 
Terrell,  Ex  parte.  Buck,  345,    -      845 

V.  Goddard,  18  Ga.  664,    -      997 

V.  Hurst,  70  Ala.  588,     315,  346, 

1131 

V.  Ingersoll,  10  Lea,  77,    -     1008 

Terrill  v.    Richards,  1  Nott  & 

McC.  (S.  Ca.)  20,  -  870,  875,  876 
Terry  v.  Berry,  13  Nev.  514,     -    1131 

V.  Butler,  43  Barb.  395,     -      825 

V.  Carter,  25  Miss.  168,     -       873 

V.  Ragsdale,  33  Gratt.  342,     1171 

Tesson,  Re,  9  Bankr.  Reg.  378,  841 
Tevis  V.  Tevis,  24  Mo.  535,  -  358 
Texas  Banking  &  Ins.  Co.  v. 

Cohen,  47  Tex.  406  (26  Am. 

Rep.  298),  -  -  -  -  272 
Texas    Ins.   Co.  v.   Cohen,  47 

Tex.  406,  ....  273 
Texas  &  St.  Louis  R'y  Co.  v. 

McCaughey,  63  Tex.  271,      -   1086, 

1091 
clx 


Thacker  v.  Shepherd,  2  Chit. 

652, 

Thackray's  Appeal,  75  Pa.  St. 


Tharp  v.  Marsh,  40  Miss.  158,  - 
Thayer  v.  Augustine,  55  Mich. 

188  (40  Am.  Rep.  465),  - 
V.  Buffum,  11  Met.  398,    - 


1021 

659 
37 


V.  Smith,  116  Mass.  3C9, 

V.  Younge,  86  Ind.  259, 

Theall  v.  Lacey,  5  La,  Ann.  548, 
Theilen  v.  Haun,  27  Kan.  778, 


45 

-  882, 

884 

-  453 
676,  678 

984 

192, 

443 

908 


Theller  v.  Such,  57  Cal.  447, 
Theriot  v.  Michel,  28  La.  Ann. 

107,         ...         70,  286,  587 
Thibodaux  v.    Keller,   29  La. 

Ann.  508,  509,        -        -       -      176 
Thick nesse  v.  Bromilow,  2  Cr. 

&  J.  425,        -        -        329,  342,  370 
Thomas,   Re,   17   Bankr.  Reg. 

54;  8  Biss.  139,      200,  453,  841,  842 

V.  Adams,  2  Porter,   196,     1079 

V.  Alherton,  10  Ch.  D.  185,     761, 

763 

101 

321, 

1151 

211, 

213,  252,  544 


V.  Green,  30  Md.  1,  - 

V.  Harding,    8  Me.    417, 

V.  Lines,  83  N.  Ca.  191, 


V.  Lusk,  13  La.  Ann.  319, 
V.  Miles,  3  Oh.  St.  274,  - 
V.  Minot,  10  Gray,  263, 


1103 
676 
825, 
835 
1107 
1149 
383, 


V.  Mohler,  25  Md.  36, 

V.  Moore,  71  Pa.  St.  193, 

V.  Pennrich,  28  Oh.  St.  55, 

1038,  1044 

V.  Pyke,  4  Bibb  (Ky.),  418,      874 

V.  Shillabeer,  1  M.  &  W, 

124,         ...        -      505,  520 

V.  Stetson,  62  Iowa,  537 

(49  Am.  Rep.  148),         -     427,  1044 

V.  Thomas,  5  Ex.  28,        -      856 

V.   Wolcott,    4    McLean, 

365, 1154 

xii 


Tuo.] 


TABLE  OF  CASES. 


[Tie. 


Thomason   v.  Frere,  10  East, 

418,  -  -  610,  750,  755,  1020 
Thompson,  Ex  parte,  3  Deac. 

&  Ch.  012,  -  -  -  .  90G 
V.   Andrews,  1  Myl.  &  K. 

116, 600 

V.  Briggs,  8  Foster  (28  N. 

n.),  40, 529 

V.  Bowman,  6  Wall.  316,     279, 

280,  299,  587,  700 
V.  Brown,  1  Mood.  &  Malk. 

40, 494 

V.   Brown,   4  Johns.   Ch. 

619,         ...       -       604,  727 

V.  Egbert,  3  N.  Y.  Su- 
preme Ct.  474,       ...      301 

V.  Emmert,  15  111.  415,     380,  535 

V.  Franks,  37  Pa.  St.  327,     1164 

V.  First  Nat'lB'k,   111  U. 

S.  529,    -       -        -       -    91,  92,  94 

V.  Frist,  15  Md.  24,   -     824,  1109 

V.  Gray,  11  Daly,  183,      -      198 

V.  Hale,  6  Pick.  259,         -      884 

V.  Head,  2  Ind.  245,  -        -      317 

V.  Lewis,  34  Me.  167,     719,  1103, 

1104,  1109 

V.  Percival,  5  B,  &  Ad. 

925;  3  Nev.  &  M.  167,  -       505,  519, 

520,  523,  524,  528,  529 

V.  Rogers,  69  N.  Ca.  357,     731, 

763 
V.  Eyan,  3  Swanst.  565,   -      269 

V.  Snow,    4  Me.   264  (16 

Am.  Dec.  263),       ...       45 

V.  Spittle,  102  Mass.  207,  -      183 

V.  Springall,  3  C.  B.  540,  -      886 

V.  Stbt.  Julius  D.  Mor- 
ton, 3  Oh.  St.  26  (59  Am. 
Dec.  658),        ....      882 

V.  Tinnin,  25  Tex.  Sup.  56,     1109 

V.  Williamson,   7  Bligh, 

N.  R.  432,       ....      181 

V.   Waithman,    3    Drew. 

628, 706 

Thomson's  Estate,  12  Phila.  36.        73 
Thomson  v.  Thomson,  1  Bradf. 
(N.  Y.)  24,      -        -        -        -      714 


Thorn  v.  Smith,  21  Wend.  365,     443, 

701,  1153,  1153 
Thorndike  v.  DeWolf,  6  Pick. 

120, 70 

Tliornton,  Ex  parte,  5  Jur.N.  S. 

213, 842 

V.  Bussey,  27  Ga.  302,    454,  825, 

847 
V.  Dixon,  8  Brown's  Ch. 

Cas.  199,         ....      974 

V.  Kerr,  6  Ala.  833,  -        -    1151 

V.     McNeill,     23     Miss. 

369,         ...       .       -        -      962 

V.  Proctor,  1  Anstr.  94,    -     7G6, 

770,  780 
Thorpe  v.  Jackson,  2  Y.  &  C. 

Ex.  553,  ....      748 

Thrall    v.    Crampton,    9    Ben. 

218;  16  Baukr.  Reg.  361,      290,  822 

V.  Seward,  37  Vt.  573,     -     211, 

681,  1025,  1171 
V.  Waller,  13  Vt.  231  (37 

Am.  Dec.  593),        -        -        -      860 
Thurber  v.    Corbin,    51   Barb. 

215  (S.  C.  as  Thurber  v,  Jen- 

kins,  36  How.  Pr.  66),  -       534,  5c8 
V.   Jenkins,  36  How.   Pr. 

66  (S.  c.  as  Thurber  v.  Cor- 
bin, 51  Barb.  315),  -       534,  538 
Thursby  v.  Lidgerwood,  69  N. 

Y.  198,   -        -        -        265,  686,  687 
Thurston  v.  Horton,  16  Gray, 

374, 1154 

V.  Lloyd,  4  Md.  383,  .      361 

V.  Perkins,  7  Mo.  29,  86,  611 

Thwaites      v.     Richardson,    1 

Peake,  23  [16J,       -        -        -      331 
Thwing  V.  Cliflford,  136  Mass. 

483,        ....  60,  473 

Tibbetts  v.  Magruder,  9  Dana, 

79, 878 

Tidd  V.  Rines,  36  Minn.  201 ;  10 

Cent.  L.  J.  102,      -        -        .296 
Tiemann  v.    MoUiter,    71  Mo. 

513,         ....       737,  733 
Tiernan  v.  Doran,  19  Neb.  492,     267, 

1061 
clxxiii 


Tip.  J 


TABLE  OF  CASES. 


[Tou. 


Tiffany  v.  Crawford,  14  N.  J. 

Eq.  278,  ....      848 

TifielJ  V.  Adams,  3  Iowa,  487,  507 
Tilford  V.  Ramsey,  37  Mo.  563,      199, 

202,  324,  341 
Till's  Case,  3  Neb.  261,  -  -  1131 
Tillier  v.  Whitehead,  1  Dall. 

269.  .  -  -  .  322,  334 
Tillinghast  v.  Champliu,  4  R.  I. 

173,  281,  291,  294,  295,  300,  739, 

923,  1001,  1114 
Tillotson  V.  Tillotson,  34  Conn. 

335,         285,  523,  603,  763,  767,  769, 

770,  774 
Tillou  V.    Kingston  Mut.    Ins, 

Co.  5  N.  Y.  405  (rev.  7  Barb. 

570), 272 

Tilman  v.  Cannon,  3  Humph. 

(Tenn.)637,  -  -  -  -  1014 
Timmerman  v.  Dever,  52  Mich. 

34  (50  Am.  Rep.  240),  -  -  676 
Tiudal  V.  Bright,  1  Minor  (Ala.), 

103, 900 

Tiner  v.  Christian,  27  Ark.  300,  908 
Tiukum  v.  O'Neale,  5  Nev.  93,      454, 

535,  1049,  1055 
Tipton  V.  Vance,  4  Ala.  194,  -  884 
Tirrell  v.  Jones,  39  Cal.  655,  -  781 
Tissard  v.  Warcup,  2  Modern, 

279, 746 

Titus  V.  Follet,  2  Hill,  318,      -    1031 

V.  Todd,  25  N.  J.  Eq.  458,     523, 

529 
Tobey  v.  McFarlin,  115  Mass. 

98,  ...    180,  1103,  1113 

Tobias  v.  Blin,  21  Vt.  544,  -  45,  59 
Todd  V.  Clapp,  118  Mass.  495,  -     136, 

145 

V.  Daniel,  16  Pet.  521,      -    1057 

V.  Jackson,  75  Ind.  272  s.  C. 

aa  Jackson  v.  Todd,  56  id.  406),      316 

V.  Lorah,  75  Pa.  St.  155,  -     411, 

428,  1044 
V.  Rafferty,  30  N.  J.  Eq. 

254,  115,  121,  128,  306,  792.  942, 

947,  949 
Tolan  V.  Carr,  12  Daly,  520,     -      795 


Tolford  V.   Tolford,    44    Wis. 

547, 863 

Tolman  v.  Hanrahan,  44  Wis. 

133, 441 

Tom  V.  Goodrich,  2  Johns.  213,    438, 

451 
Tombeckbee  Bk.  v.  Dumell,  5 

Mason,  56,  ....  694 
Tomes,  Re,  19  Bankr.  Reg.  36,     105, 

547,  562 
Tomlin  v.  Lawrence,  3  Moo.  & 

P.  555,  ....  199,  381 
Tomlinson    v.     Hammond,     8 

Iowa,  40,        -       -       -      632,  644 

V.  Nelson,  49  Wis.  679,    -     850, 

852 

V.  Ward,  3  Conn.  396,      761,  767 

Tompkins  v.   Tompkins,   18  S. 

Ca.  1,  -  -  -  -  711,  730 
V.   Woodyard,  5  W.  Va. 

216,  -        -        -        .       349,  362 

Tone  V.  Goodrich,  2  Johns.  213,  746 
Tonne,  Re,  13  Bankr.  Reg.  170,.  1131 
Toof  V.  Duncan,  45  Miss.  48,  -     317, 

477 
Toombs  V.  Hill,  28  Ga.  371,  825,  828 
Topliff  V.    Jackson,    13  Gray, 

565,  -  -  -  641,978,979 
V.  Vail,  1  Harr.  Ch.  (Mich.) 

340, 552 

Topping,  Ex  parte,  4  De  G.  J. 

&  S.  551,         -        -        -       844, 846 

V.  Paddock,  92  111.  92,      251,  785 

Torrens  v.  Campbell,  74  Pa.  St. 

470,  -  503,  504,  510,  513,  514 
Torrent  v.  Yager,  52  Mich.  506,  177 
Torrey  v.  Baker,  13  Vt.  452,     526,  692 

V.  Baxter,  13  Vt.  452,       408,  694 

V.  Twombley,  57  How.  Pr. 

149, 853 

Totty  V.  Donald,  4  Uuut  (Va.) 

430, 1065 

Toulmin  v.  Copland,  3  Ph.  711 

(revg.  4  Ha.  41),  -  -  -  801 
V.  Copland,  2  CI.  &  Fin. 

681 ;  3  Y.  &  C.  Ex.  625,       314,  497, 

801,  973 


clxxiv 


Tow.] 


TABLE  OF  CASES. 


[Tuc. 


Towle  V.  Meserve,  33  N.  H.  9,       849, 

856 
V.  Pierce,  12  Met.  329  (46 

Am.  Dec.  679),  -  907,  933,  936 
Town  V.  Hendee,  27  Vt.  238,    -       101 

V.  Washburn,  14  Minn.  26^,    706, 

1094 
Towne  v.  Leach,  32  Vt.  747,  -  1103 
Townend  v.  Towneod,  1  Giff. 

201, 800 

Towner  v.  Lane,  9  Leigh  (Va.), 

262,  -        -        -        -        -      181 

Townes  v.  Birchett,  12  Leigh, 

173, 1055 

Townsend     v.      Goewey,      19 

Wend.  424,     -        -        -       874,  876 

V.  Long.  77  Pa.  St.  143,    -      647 

V.  Neale,  2  Camp.  189,      -     1019 

Townsends    v.    Stevenson,     4 

Rich.(S.  Ca.)L.  59,  -  -  528 
Tozier  v.  Crafts,  123  Mass.  480,  1153 
Tracy  v.    McManus,  58   N.  Y. 

257, 1150 

V,    Walker,  1    Flip.  41 ;  3 

West.  Law  Month.  574,      541,  555. 

560,  755,  952 
Tradesmen's  Bank  v.  Astor,  11 

Wend.  87,  90,  -  -  -  322 
Trafford  v.  Hubbard,  15  R.  I,    1105, 

1107 
Trafton    v.    United    States,   3 

Story,  C.  C.  646,  -  -  -  537 
Trammell   v.    Harrell,  4   Ark. 

602,  -  -  -  -  718,  723 
Trann  v.    Gorman,    9   Porter, 

456, 1081 

Trapliageu  v.  Burt,    67    N.  Y. 

30. 303,  913 

Travers  v.   Dyer,  16  Blatchf. 

178, 899 

Travis  v.  Milne,  9  Hare,  141,    -    483, 

926 

V.  Tartt,  8  Ala.  574,       456,  1125 

Treadway  v.  Ryan,  3  Kan.  437,      858, 

860,  894 
Treadwell  v.  Brown,  41   N.  H. 

12,  -        -        -        -      825,  928,  1113 


Treadwell  v.  Brown,  43  N.  H. 

290,         ....  1106,  1113 

V.  Wells,  4  Cal.  260,     617,  622. 

624 

V.  Williams,  9  Bosw.  649,      186, 

291 
Tredwell  v.  Rascoe,  3  Dev.  (N. 

Ca.)  L.  50,  -  -  -  1105,  1111 
Treiber    v.    Lanahan,   23  Md. 

116, 63,  64 

Tremper  v.  Conklin,  44  N.  Y. 

58  (aff.  44  Barb.  456),  450,  718, 1170 
Tregerthen  v.  Lohrum,  6  Mo. 

App.  576.  -  -  .  -  100 
Trentman  v.  Swartzell,  85  Ind. 

443,  ...  -  551,  .560 
Trenwith  v,  Meeser,  12  PhiJa. 

366.  -  -  -  .  377,  379 
Trickett  v.  Moore,  34  Kan.  755,  110:5 
Trimble  v.  Coons,  2  A.  K.  Mar. 

(Ky.)  375,  -  -  -  414,  416 
Tripp  V.  Williams,   14  S.  Ca. 

502,  ....     701,  1151 

Troughton  v.  Hunter,  18  Beav. 


470, 


610,  07 


M 


Troup's  Case,  29  Beav.  143,     -      785 
Trowbridge  v.   Cross,   117  111. 

109,         -        -        -      180,  290,  1131 

V.  Cushman,  24  Pick.  310,     453. 

1099,  1114' 

V.  Scudder,    11   Cush.  83,      4,  7- 

Troy  Iron   &   Nail  Factory  v. 

Winslow,  11  Blatchf.  513,  750,  1055' 
True  V.  Congdon,  44  N.  H.  48,  1072- 
Truesdell  v.  Baker,  2  Rich.  (S. 

Ca.)L.  351,     -        -        -        -      575 
Truitt  V.  Baird,  12  Kan.  420,    -      876' 
Trull  V.  Trull,  13  Allen,  407,    -      483 
TruUinger  v.  Corcoran,  8H  Pa. 

St.  395, 351 

Trumlin  v.  Goldsmith,  40  Ga. 

221, 1147 

Trump  V.  Baltzell,  3  Md.  295,      629, 

632,  775 

Tucker  v.  Adams,  03  N.  H.  361,     114. 

116,  129,  1105,110(5 

V.  Bradley,  33  Vt.  324,     390,  484 

clxxv 


Tuc] 


TABLE  OF  CASES. 


[Uhl. 


Tucker  v.  Cole,  54  Wis.  539,  ,889,  642 

V.    Oxley,    5   Cranch,    34 

(rev.  1  Cr.  C.  C.  419),      -        -    1081 

V.  Peaslee,  36  N.   H.  167,      15G, 

157,  439,  445,  446,  449,  852,  978 
Tuckeiman     v.    Newhall,     17 

Mass.  581,  -  -  -  -  385 
Tudor  V.  White,  27  Tex.  584 

(White  V.  Tudor,  24  id.  639),     618, 

690,  1171 
Tulane  v.  McKee,  10  Tex.  335,  1094 
Tunis  V.  Leutze,  1  Mo.    App. 

211, 869 

Tupery  v.  Lafitte,  19  La.  Ann. 

296, 1057 

Tupper  V.  Haythorne,  Gow,  N. 

P.  135, 258 

Turbeville  v.  Ryan,  1  Humph. 

113,  129  (34  Aro.  Dec.  622),  -  416 
Turk  V.    Nicholson,    30  Iowa, 

407, 1081 

Turnbow  v.  Broach,  12  Bush, 

455,  -  -  -  523,  526,  694 
Turner,  Ex  parte,  4  D.  «&  C. 

169 ;  1  Mont.  &  A.  54,  -  -  838 
V.    Bayley,   34   Beav.    105 

(affg.  s.  c.  as  Turney  v.  Bay- 
ley,  4  D.  J.  &  S.  332),    -       314,  922 

V.  Bissell,  14  Pick.  192,      16,  39, 

43,  59,  1094 
V.  Burkinshaw,   L.    R.   2 

Ch.  App.  488,  -  -  -  786 
V.  Evans,  2  E.  &  B.  512  (2 

D.  M.  G.  740),  -  -  -  677 
V.    Jaycox,  40  N.    Y.  470 

(explained  in  Berkshire  Wool 

Co.  V.  Juillard,  §  452),    452,  453,  504, 

564 

V.  McIIhany,  8  Cal.  575,    -   1155, 

1158 

V.  Mayor,  8  Giff.  442,      660,  794 

V.  Otis,  80  Kan.  1,     -       788,  9(54 

V.  Reyuell,  14  C.  B.  N.  S. 

328, 110 

V.  Ross,  1  R.  I.  88,     -       703,  705 

V.  Smith,  1  Abb.  Pr.  N.  S. 

304, 1109 


Turney,  Ex  parte,  3  M.  D.  & 
D.  576, 843 

V.  Bayley,  4  De  G.  J.    & 

Sm.  332,  -  -  -  314,  922, 
Turnipseed  v.  Goodwin,  9  Ala. 

372,  -  181,  182,  781,  785,  917 
Tuiquand,  Ex  parte,   2  M.    D. 

&  D.  339,  ...  87,  808 
Tustin   V.  Cameron,  5  Whart. 

379, 1080 

Tuten    V.    Ryan,  1   Spears    (S. 

Ca.),  240,  ....  454 
Tutt  V.  Adams,  24  Mo.  186,      -      360 

V.  Cloney,  62  Mo.  116,       -      68;) 

V.  Land,  50  Ga.  339,        255,  702, 

781,  819 
Tuttle  V.  Cooper,  5  Pick.  414,     1152 

V.  Cooper,  10  Pick.  281,       148, 

1094 

V.     Eskridge,     2    Munf. 

(Va.)  330,        -        .       -       421,  438 

Tweed   v,    Lowe,    1   Arizona, 

488, 1137 

Twibill  V.  Perkins,  8  La.  Ann. 

132. 328 

Twiss  V.  Massey,  1  Atk.  67,     .      825 
Twogood  V.  Swanston,  6  Ves. 

485, 964 

Twyford  v.  Trail,  7  Sim.  92,    -      482 
Tylei-  V.  Scott,  45  Vt.  261,         28,  33, 

325,  411 
Tynberg  v.  Cohen  (Tex),  2  S. 

W.  Rep.  734,  -        -        -     1053 

Tynerv.  Stoops,  11  Ind.  22,     -      524 
Tyng  V.  Thayer,  8  Allen,  391,     681, 

692,  795,  937 
Tyree  v.  Lyon,  67  Ala.  1,  362,  367 
Tyrrell  v.  Washburn,  6  Allen, 

4(J6, 73 

Tyson  v.  Pollock,  1  Pa.  (Pen- 
rose &  Watts)  375,        -      384,  524 

u. 

Uberoth  v.  Union  Nat'I  Bk.  9 

Phila.  83,  -  -  -  -  715 
Uhl  V.  Bingaman,  28  Ind.  365,      631 


clxxvi 


Uhl.] 


TABLE  OF  CASES. 


[Van. 


Uhl  V.  Harvey,  78  Ind.  26,    619, 1147, 

1155,  1157 
XThler  v.  Browning,  28  N.  J.  L. 

79,     201,205,439,443,451,701,1152 

V.  Semple,  20  N.  J.  288,    290,  304, 

544,  820,  821,  1101 
Ulcry  V.  Ginrich,  57  111.  531,      329, 

343,  371 
Umbarger  v.  Plume,  26  Barb. 

461, 

Union  Bk.  v.  Eaton,  5  Humph. 

501, 

V.    Hall,  Harper  (S.  Ca, ), 

245, 

V.   Hodges,    11   Rich.   (S. 

Ca.)  L.  480,     -        -        -        . 

V.  Underbill,  21  Hun,  178, 

Union  Nat'l  Bk.  v.  Underbill, 

102  N.  Y.  336, 
Union  &  Planters'  Bank  v.  Day, 

12  Heisk.  413, 
Union  Hotel  Co.  v.  Hersee,  79 

N.  Y.  454,       .... 
United  States  v.  Am.  Bell  Tele- 
phone Co.  29  Fed.  Rep.  17,  - 
V.  Athens  Armory,  35  Ga. 

344, 

V.  Aslley,  3  Wash.  C.  C. 

508,        205,  368,  415,  416,  420,  422, 

438 

V.  Duncan,  4  McLean,  607,     545, 

831 

V.  Fish,  24  Fed.  Rep.  585,      488 

V.  Glab,  99  U.  S.  225,      178,  269 

V.  Hack,  8  Pet.  271,        831,  832 

V.  Hallock,  U.  S.  Supreme 

Ct.    Book   17,    Lawy.  Coop. 

Ass'n,  p.  568,         ... 
V.    Lewis,    92  U.  S.    618 

(affg.  13  Bankr.  Reg.  33),      - 
V.  McGiunis,  1  Abb,  U.  S. 


534 

448 

680 

585 
353 

1152 
446 
316 

1086 
721 


114 


831 


120, 

—  V. 

—  V. 

V. 

V. 

236, 


Sbelton,  1  Brock.  517, 

Thomasson,  4  Biss.  99, 

Thompson,  Gilpin,  614, 

"Williams,   4   McLean, 

1105,  1106,  1111 


488 
831 
4G8 
385 


U.  S.  Bank  v.  Binney,  5  Mason, 
176,  150,  156,  216,  317,  373,  443, 

608,  922,  978,  979 
University    of   Cambridge    v. 

Baldwin,  5  M.  &  W.  580,  -  653 
Updike  V.  Doyle,  7  R.  I.  446,   -     510, 

511,  512,  935 
Upham  V.  Hewitt,  42  Wis.  85,        33 

V.  Naylor,  9  Mass.  490,     -     1103 

Upson  V.  Arnold,  19  Ga.  190(63 

Am.  Dec.  302),  -  -  559,  560 
Urqubart  v.  Powell,  54  Ga.  29,       61, 

323 
Usher  v.    Dauncey,   4  Camp. 

97, 199,  691 

Usry  V.  Rainwater,  40  Ga.  328,      541 
Utley  V.  Smith,  24  Conn.  290,     557, 

569 

V. 

Vaccaro    v.     Toof,    9    Heisk. 

(Tenn.)  194,  -  -  -  525,  608 
Valentine   v.    Farnsworth,    21 

Pick.  176,        -        610,  644,  713,  737 

v.  Hickle,  39  Oh.  St.  19,     80,  446 

Valett  v.  Parker,  6  Wend.  615,     361, 

1063 
Van  V.    Hussey,    1  Jones,    L. 

381, 1105 

Van  Alstyne  v.   Bertrand,  15 

Tex.  177,  -  -  347,  348, 1073 
Van  Amringe  v.    EUmaker,  4 

Pa.  St.  281,  -  -  -  858,  861 
Van  Brunt  v.  Applegate,  44  N. 

Y.  544, 291 

v.  Mather,  48  Iowa,  503,  -      328 

Vance  v.  Blair,  18  Oh,  532  (51 

Am.  Dec.  467),  -  78.  870,  871,  872 
v.    Campbell,   8  Humph. 

524, 410 

v.  Cowing,  13  Ind.  460,    747,  750 

Vanderburgh    v.     Bassett,     4 

Minn.  242,  .  .  381, 383, 466 
V.  Hull,  20  Wend.  70,       -        43 


Vandervoort    v.     Palmer,     4 
Duer,  677,  679,       ...    1086 


clxxvii 


Van.] 


TABLE  OF  CASES. 


[Via 


Vanderwyck  v.    Summerl,    2 

Wash.  C.  C.  41,     -        -        -      486 
Van  Deusen  v.  Blum,  18  Pick. 

229  (29  Am.  Dec.  583),  -       418,  420 
Vandike   v.   Rosskam,  67   Pa. 

St.  330,  -        -        -        .   1101,  1106 
Van  Doren  v.  Horton,  19  Hun, 

7, 687 

Vanduzer  v.  McMillan,  37  Ga. 

299, 773 

Van  Dyke  v.  Jackson,  1  E.  D. 

Smith,  419,     -        -        -        -      663 
Van  Eps  v.    Dillaye,   6  Barb. 

244, 612 

Van  Gilder  v.  Jack,  61  Iowa, 

756, 595 

Van  Keuren  v.  Parmelee,  2  N. 

Y.  523  (51  Am.  Dec.  322),      -      703 
Van  Kirk  v.  Wilds,    11   Barb. 

520,         ....  1118,  1119 
Van  Kuren  v.  Trenton  Locom, 

&  Mach.  Mfg.  Co.    13  N.  J. 

Eq.  302,  -        -   17,  33,  133,  577,  991 
Vanness  v,  Dubois,  04  Ind.  338,      634, 

635,  647 
Van   Ness  v.   Fisher,   5  Lans. 

236, 593 

V.  Forrest,  8  Cranch,  30,      878. 

880 
V.  Van  Ness,  32  N.  J.  Eq. 


669, 


983 
750 
998 
569 


Van  Reimsdyk  v.  Kane,  1  Gall. 

371 :  id.  630,    -        -        -        - 
Van    Rensselaer   v.  Emery,    9 

How.  Pr.  135, 
Van   Rossum    v.    Walker,    11 

Barb.  237,       .... 
Van  Sandan  v.  Moore,  1  Rusa. 

464,  -        -        -        -     574,  1011 

Van  Scoter  v.  Lefferts,  1 1  Barb. 

140, 629 

Van  Staden  v.  Kline,  04  Iowa, 

180,         -        -        -        SOO,  705,  706 
Vansyckle  v.  Rorback,  6  N.  J. 

Eq.  234,  .        ...      147 

Van  Tine  v.  Crane,  1  Wend. 

524, 346 


Van  Valen  v.  Russell,  13  Barb, 

590,         -        -        -     155,  840,  1053 
Van  Valkenburg  v.  Bradley, 

14Iowa,  108,  -        -        -       695,698 
Van  Wagner  v.  Chapman,   29 

Ala.  173,         -        -        -       825,  833 
Vanzant   v.   Kay,   2    Humph. 

106,         -        -        .    694,  1168,  1169 
Varnum      v.       Campbell,       1 

McLean,  313,  -        -        -    1067 

Vassar  v.  Camp,  14  Barb.  341 

(affd.  11  N.  Y.  441),        -        -33,82 
Veale  v.  Hassan,  3  McCord,  L. 

278,  ....       693,  705 

Venable   v.    Levick,    2    Head 

(Tenn.),  351,     317,  348,  373, 440,  447 
Venning  v.  Deckie,  13  East,  7,     874, 

875 
Verderwater  v.  Blills,  19  How. 

82  (affg.  McAll.  9),         -        -      908 
Vera  v.  Ash  by,  10  B.  &  C.  288,       64, 

221,  445,  503 
Vermillion   v.    Bailey,   27    111. 

230, 313 

Vernon  v.  Hallam,  34  Ch.  D. 

748,  -        -        6G4,  660,  676,  677 

V.  Jeffrys,  Str.  1140,  -     1016 

V.     Manhattan     Co.     22 


Wend.   183  (aff.   s.  c.    17  id. 
524),        -        536,  606,  613,  617,  618 

—  V.  Upson,  CO  Wis.  418,      -      566 

—  V.  Vundry,  2  Atk.  119,      -      964 

—  V.   Vernon,    7   Lans.  492 


(modified  53  N.  Y.  351),  ■  -  603 
Vetter  v.  Lentzinger,  31  Iowa, 

182, 265 

Vetterlein,  In  Matter  of,  5  Ben. 

C.  C.  311,  ....  195 
V.    Barnes,    6    Fed.   Rep. 

693,  -  -  -  -  717,  755 
Vice  V.  Fleming,  1  Tounge  & 

J.  227, 619 

V.  Lady  Anson,  7  B.  «&  C. 

409,  more  fully  reported  in  3 

C.  &  P.  19,  -  -  -  -  91,  94 
Vickers    v.  Vickers,   L.   R.   4 

Eq.  529,  ....  247,  1012 
clxxviii 


'Vie.] 


TABLE  OF  CASES. 


[Wal. 


Vienne  v.  Harris,  14  La.  Ann. 
383,  -        -        -   '    -        -    1069 

V.  McCarty,  1  Ball.  154,    720,  924 

Vilas  V.  Farwell,  9  Wis.  460,    580.  884 
Viles  V.  Bangs,  36  Wis.  131,    -     383, 

1024,  1038 
Villa,  V.  Jonte,  17  La.  Ann.  9, 
V)nal  V.  Burrill,  16  Pick.  401, 


457 

701, 

864 


V.  West  Va.  Oil,  etc.  Co. 


110  U.  S.  215,  -        -        -    1018 

Vincent  v.  Martin,  79  Ala.  540,      59S, 

601,  742,  908 

Vinsen  v.    Lockard,    7  Bush, 
458, 142 

Vinson  v.  Beveridge,  3  Mac  Ar- 
thur (Distr.  Col.),  597,  -    23,  91,  99 

Von  Pheel  v.  Connally,  9  Por- 
ter (Ala.),  453.        -        -        -     1081 

Von  Phul  V.  New  Orleans,  24 
La.  Ann.  261.         -        -        -      176 

Voorlioes  v.  Jones,  29  N.  J.  L. 
270,         -        -       33,33,37,43,344 

Voorhis  V.  Baxter,    18    Barb. 
593, 750 

V.  Childs,  17  N.  Y.  354,    -     747, 

748,  750 

Vose  V.  Singer,  4  Allen,  226,    -        69 

Vosper  V.  Kramer,  31  N.  J.  Eq. 
420,  -        -        -       551,  560,  732 

Vredenburg  v.  Behan,  33  La. 
Ann.  027,        .        -        -        .         5 

V.  Lagan,  28  La.  Ann.  941,      349 

Vulliamy    v.  Noble,  4    My.  & 
Cr.  l09;3Mer.  619,        -      610,  747 

Vyse   V.    Foster,  L.  R.    8  Ch. 
App.  309,  and  L.  7  H.  L.  318,     481. 

485,  797 

w. 

VVaddell  V.  Cook,  3  Hill,  47,    -  1108 

Wade  V.  Jenkins,  3  Giff.  509,  -  661 

V.  Metcalf,  16  Fed.    Rep. 

130, 206 

V.  Rusher,  4  Bosw.  537,    -  932 

Wadley  v.  Jones,   55  Ga.   329,  885, 

910,  916 


Wadsworth  v.  Manning,  4  Md. 

59,  -        -        40,  264,  873,  876,  1013 
Waggoner  t.  Gray,  3  Hen.  & 

M.  (Va.)603,  -        -        -       786,930 

V.  Minter,  7  J.  J.  Mar.  173,      959 

Wagner  v.  Freschl,  56  N.   H. 

495.         -        -        -       832.  324,  348 

V.  Simmons,  61  Ala.  143,     328, 

341,  370 

V.  Wagner,  50  Cal.  76,      -      551 

Wagnon  v.  Clay,  1  A.  K.  Mar. 

(Ky.)  257,       -        -        319,  365,  373 
Waiuvvright  v.   Waterman,    1 

Ves.  Sr.  311,  -        -        -        -      249 
Wait,  Re,  1  Jac.  &  W.  605,     -      755 

V.  Brewster,  31  Vt.  516,    -      100 

V,  Thayer,  118   Mass.  473,       353 

Waite,   In  re,  1   Low.    207;   1 

Bankr.  Reg.  373,     -        -      443,  563 

V.  Dodge,  34  Vt.  181,       152,  153 

609,  1022,  1023 

V.  Foster,  33  Me.  424,        -      690 

V.  Mathews,  50  Mich.  393,     1131 

V.  Merrill,  4  Me.  103,        -        13 

Walcott  V.  Canfield,  3  Conn. 

194, 331 

Waldeck   v.  Brande,    61  Wis. 

579  (21  N.  W.  Rep.  533),       518,  709 
Walden     v.      Sherburne,      15 

Johns.  409,        12,  56,  317,  420,  423, 
437,  438,  447,  451,  700 
Waldo  Bank  v.  Greely,  16  Me. 

419. 301 

V.  Lumbert,  16  Me.  416,     352,  415 

Waldron,  In  re.  98  N.  Y.  671,  - 
V.  Simmons,  28  Ala.  639, 


453 

747, 

750 


Wales  V.  Chamberlin,  19  Mo. 

500, 

v\  alkenshaw  v.  Perzel,  4  Robt. 

426 ;  32  How.  Pr.  233,  - 
Walker,  Ex  parte,  4  De  G.  F. 

&  J.  509,         .... 

,  Re,  6  Ontario  App.  169,  - 

825,  833 
V.  Bean  (Minn.    1886),   26 

N.  W.  Rep.  233,    -        -       -      336 


1073 

931 

563 
563, 


cixxix 


Wal.] 


TABLE  OF  CASES. 


[Wan. 


Walker  v.  Clark,  8  Iowa,  474,     lOSG 

V.  Consett,  Forrest,  157,  -      954 

V.  Duberry,  1  A.  K.  Mar. 

(Ky.)189,        ....      700 

V.  Harris,  1  Anstr.  245,     -      869 

V.  Hirsch,  27  Ch.  D.  460,     28,  29 

V.  House,  4  Md.  Ch.  39,    -      998 

V.  Kee,  14  S.  Ca.  142,      854,  859, 

401, 1040 

V.  Kee,  16  S.  Ca.  76,  -    1040 

V.  McCuUoch,  4  Me.  431,  -      385 

V.  Marine  Natl.  Bank  of 

Erie,  98  Pa.  St.  574,       -       566,  567 

V.  Mattliews,  58  111.  193,  -    li:J7 

V,  Mottram,  19  Ch.  D.  355,      667 

V.  Sharpe.  103  Mass.  154,  -      389 

V.  Steel,  9  Col.  388,   -       -    1024 

V.  Trott,  4  Edw.  Ch.  38,  -     554, 

999 

V.  Wait,  50  Vt.  668,  -       72,  173, 

197,  580,  882,  884 

V.  Whipple,  58  Mich.  476,     571, 

572 
Wall  V.  Balcom,  9  Gray,  92,  -  47 
V.  Boisregard,  11  Sm.   & 

M.  (19  Miss.)  574,  -  -  -  1028 
Wallace's  Appeal,  104  Pa.  St. 

559,  ....  548,  927 
Wallace  v.  Berger,   14  Iowa, 

183, 983 

V.  Finberg,  46  Tex.  35,     -      139 

V.  Fitzsimmons,   1   Dall. 

248,  -  -  -  -  716,  722 
V.  Freeman,  25  Tex.  Sup. 

91, 510 

V.  Hull,  28  Ga.  68.    -       -    1103 

V.  Jaaies,  5  Grant's  Ch. 

163,         ....      479,  486 

V.  Kelsalls,  7  M.   &  W. 

264,         ....     383,  1037 

V.  Milligan,  110  Ind.  498,     753, 

935,  971 

V.  Patterson,  2  H.  &  McH. 

463, 1103 


Waller  v.  Davis,  59  Iowa,  103,  347» 
507,  509,  570,  585 

V.  Keyes,  6  Vt.  257,        317,  319, 

322,  343,  362,  439 
Wallingford  v.   Burr,  17  Net. 

137, 657 

Wallis  V.  Carpenter,  13  Allen, 

19, 234 

V.  Wallace,  6  How.  (Miss.) 

254, 1121 

Walhvorth  v.  Holt,  4  M.  &  Cr. 

619, 914 

Walrasley  v.  Cooper,  11  A.  «fc 

E.  216 ;  3  Per.  &  Dav.  149,     383,  385 

V.    Mendelsohn,    31    La. 

Ann.  152,        -        -        -        -      738 

V.  Walmsley,  3  Jones  & 

Latouche,  556,        -        -      983,  983 

Wain    V.   Hewes,   5   S.    &  R. 

467, 723 

Walpole    V.    Ren  f roe,    16    La. 

Ann.  92,  ....  761 
Wahath  v.  Viley,  2  Bush,  478,  91 
Walsh  V.  Adams,  3  Den.  125,  1108 
V.  Lennon,  98  III.  27  (38 

Am.  Rep.  75),       328.  341,  370,  418, 

420 

V.  Cane,  4  La.  Ann.  533,      703 

V.  Kelly,  42  Barb.  98 ;  27 

How.  Pr.  359,-        -        -    566,  1153 

V.  Moser,  38  Tex.  290,       -      452 


V.  Yeager,  4  Pliila.  251,    -      403 

Wallenstein    v.    Selizman,     7 
Bush,  175,      ....     1084 


Walstrom  v.  Hopkins,  103  Pa. 

St.  118,  -  -  -  -  505,519 
Walton  V.  Butler,  29  Beav.  428,     266, 

838 

V.  Dodson,  3  C.  &  P.  162,     1019 

V.  Payne,  18  Tex.  60,        -    1071 

V.   Robinson,  5  Ired.  (N. 

Ca.)  L.  341,     ....      705 

V.  Tomlin,  1  Ired.  L.  593,     012, 

618 
Walworth  v.  Henderson,  9  La. 

Ann.  339,  -  -  -  353,  361 
Warnsley    v.    Lindenberger,   2 

Rand.  (Va.)  478,  -  -  -  148 
Waiin   V.   Kelly,   5   Fed.   Rep. 

584;  2  McCrary,  628,     113,  127,  865 


clxxx 


Wan.] 


TABLE  OF  CASES. 


[Wat. 


Wann  v.  McNulty,  7  111.  355  (43 
Am.  Dec.  58),        -        -        -      535 

Want  V.  Reece,  1  Bing.  18,      -      879 

Ward's  Appeal,  8H  Pa.  St. 
270,         ,        .        .        -  nil,  1113 

Ward,  Re  (U.  S.  D.  C.  Tenn., 

1879),  8  Reporter,  136,  -        -  23,  47 

V.  Apprice,  6  Mod.    264,     314, 

978 
V.  Barber,  1  E.  D.  Smith, 

423,  ....  681,  692 
V,  Bodeman,  1  Mo.  App. 

272, 45,  70 

V.  Brigham,  127  Mass.  24,  4 

V.  Chase,  35  Me.  515,         -     1162 

V.  Coulter,  4  N.  J.  L.  208,     1104 

V.  Dow,  44  N.  H.  45,        -    1008 

V.  Gore,  37  How.  Pr.  119,       965 

V.  Johnson,  13  Mass.  148,       535 

V.  Motter,    2   Rob.    (Va.) 

536,         -        .        -        .      420,  525 

V.  Newell,  37  Tex.  261,      -     1079 

V.  Pine,  50  Mo.  38,    -        -     1065 

. V.  Smith,  6  Bing.  749,       -    1031 

V.    Thompson,    22    How. 

330  (affg.  Newb.  95),  -  32,  908 
V.   Wood  burn,   27  Barb. 


846, 


534 
954 


Warden  v.  Marcus,  45  Cal.  594, 
Warder  v.  Newdigate,    11  B. 

Mod.  174  (52  Am.  Dec.  567),      282, 
363,  411,  1079 

V.  Stilwell,  3  Jur.  N.  S.  9.       243 

Wardlaw  v.  Gray,  Dudley  (S. 

Ca.),  Eq.  85,    747,  749,  750,  825,  848 
Wardwell  v.  Haight,  2  Barb. 

549, 613 

Ware  v.  Owens,  42  Ala.  412,  -  286 
Warfield  v.  Booth,  33  Md.  63,  676 
Waring  v.  Crow,  11  Cal.  366,  589 
V.  Robinson,  Hoffm.   (N, 

Y.)  Ch.  524,     -        -        -    380,  1006 

V.  Waring,  1  Redf.  205,     -      715 

Warner,  Re,  7  Bankr.  Reg.  47,       150 

V.  Griswold,  8  Wend.  665,      111, 

1019 
1127 


Warner  v.  Smith,  1  De  G.  J. 


&  S.  337, 


172,  183 


Warren,  Re,  2  Ware,  C.  C.  323,      26, 
200,  279,  302,  444,,  415,  453,  825 

V.  Able,  91  Ind.  107,        -      825 

V.  Ball,  37  111.  76,      -      152,  609 

V.  Chambers,  12   111.  124,     1074 

V.   Chapman.    105   Mass. 

87, 114,  128 


510 

832 

348 

531 

1125 

304, 

810 

184,  821 

-  1105 

-  1109 

-  931 

-  735, 
849,  852,  854 

Warring  v.  Grady,  49  Ala.  465,      318 
V.  Hill,  89  Ind.  497,  - 


V.  Dickson,  30  111.  363,  - 
V.  Farmer,  100  Ind.  593,  - 
V.  French,  6  Allen,  317,  - 
V.  Hayzlett,  45  Iowa,  235, 
V.  Perkins,  8  Cuah.  518,  - 
V.  Schainwald,  63  Cal.  56, 


■  V.Taylor,  60  Ala.  218, 

•  V.  Wallis,  38  Tex.  225, 

•  V.  Wallis,  42  Tex.  473, 
V.  Warren,  56  Me.  360, 
V.  Wheelock,  21  Vt.  323, 


891 
1126 


V.  Perkins,  8  Cush.  518, 


Wart  V.  Mann,  124  Mass.  586, 
Wartelie    v.    Hudson,    8    La. 

Ann.  486,         -        -        -        -       194 
WarLh  V.  Radde,  18  Abb.  Pr. 

396, 1038 

Warthen    v.    Brantley,   5  Ga. 

571, 934 

Warwick  v.  Richardson,  10  M. 

&  W.  284,        -        .        -      638,  640 
Washburn  v.  Bank  of  Bellows 

Falls,  19  Vt.  278,   -      454,  824,  825. 
929,  1109,  1115 

V.  Goodman,  17  Pick.  519,     580, 

707,  744,  769,  772,  774,  782, 
788,  795,  797,  935 
V.  Walworth,    133  Mass. 

499,         -        -        -        175,  626, 627 

V.  Washburn,  23  Vt.  576,        305 

Washing  v.  Wright,  8  Ired.  L. 

1, 1168 

Wass  V.  Atwater,  33  Minn.  83,        60 
Waterer  v.  Waterer,  L.  R,  15 

Eq.  403,  -        -        -        -      287 


clxxxi 


Wat.] 


TABLE  OF  CASES. 


[Wek, 


Waterman  v.  Hunt,  2  R.  I.  298,  543, 
559,  5G0,  882,  884 

V.  Johnson,  49  Mo.  410,     -      597 

V.  Lipman,  67  Cal.  26,      -    10G6 

Waters  v.  Taylor,  15  Ves.  10,     233 

993,  999 

V.  Taylor,  2  V.  &  B.  299,  -      581 

V.  Tompkins,  2  C.  M.  & 

R.  723, 489 

Wat  kins    v.   Fakes,   5    Heisk. 

185,  -  726,  739,  740,  923,  935 
V.  Terre  Haute,  etc.  R.  R. 

8  Mo.  App.  569,  ...  66 
Watkinson  v.  Bank  of  Penn.  4 

Whart.   482    (34   Am.    Dec. 

521),  ....  617,  618 
Watney  v.  Wells,  L.  R.  2  Ch. 

App.  250,        ....      783 

V.  Wells,  30  Beav.  56,      -      504 

Watson,  Ex  parte,  19  Ves.  459,       16, 

155,  840 

V.  Fletcher,  7  Gratt.  1,     1 12, 1 16, 

119,  127 

V,  Gabby,  18  B.  Mon.  658,   1105, 

1109 

V.  Lovelace,  49  Iowa,  558,     1137 

V.  Miller,  55  Tex.  289,       -      722 

V.  Murray,  23  N.  J.   Eq. 

257,  ....  112,  119 
V.  Owens,  1  Rich.  (S.  Ca.) 

L.  Ill,    -        -        -        525,  535,  538 

V.  Wells,  5  Conn.  468,      -      392 

V.  Woodman,  L.  R.  20  Eq. 

721, 704 

Watt  V.  Kirby,  15  111.  200,     446,  507, 

508 
Watterson     v.    Patrick     (Pa. 

1885),  1  Atl.  Rep.  602,  -  603,  610 
Wattles  V.  Moss,  46  Mich.  52,  -  1158 
Watts  V.  Rice,  75  Ala.  289,  -  1064 
V.  Robinson,  32  U.  C.   Q. 

B.  362, 520 

V.  Say  re,  76  Ala.  397,        -  1079, 

1084 
Waugh  V,  Cariger,  1  Yerg.  31,  420 
V.  Mitchell,  1  Dev.  &  Bat. 

Eq.  510,         ....      977 


Waugh  V.  Carver,  2  H.  BI.  235 ; 

1  Sm.  Lead.  Cas.  908,  16,  90,  92, 157 
Way  V.  Fravel,  61  lud.  162,  -  504 
V.  Stebbins,  47  Mich.  296,     281, 

284,  294,  976 
Waydell  v.  Luer,  3  Den,  410,  -  523 
Wayland  v.  Elkins,    1   Stark. 

272;  Holt,  N.  P.  227,  -  -  67 
Wayne  v.  Clay,  1  A.  K.  Mar. 

257, 317 

Wayt  V.  Peck,  9  Leigh,  434,     -      740 
Weatherly  v.  Hard  man,  68  Ga. 

592, 647 

Weaver,  Re,  9  Bankr.  Reg.  132,       694 

V.  Ashcroft,  50  Tex.  427,     561, 

562,  1105 

V.  Carpenter,  42  Iowa,  343,    10s5, 

1080 

V.  Rogers,  44  N.  H.  112,    -    1037 

V.  Tapscott,  9  Leigh  (Va. ), 

424,  -        -        205,  422,  440,  451 

^ —  V.  Weaver,  46  N.  H.   188,     825, 

832.  843,  847 
Webb,  Re,  2  J.  B.  Moore,  500,       761 

V.  Fordyce,  55  Iowa,  11,  -      765, 

982,  984 

V.  Helion,  3  Robt.  (N.  Y.) 

625, 932 

V.  Liggett,  6  Mo.  App.  345,        80 

Webber  v.  Williams,   36  Me. 

512,  -  -  -  .  178,  269 
Weber  v.    Defor,  8  How.  Pr. 

502, 551 

Webster  v.  Bray,  7  Hare,  159,      181, 

770 

v.  Stearns,  44  N.  H.  498,     331, 

332 

V.  Webster,  3  S wanst.  490,     6 1 0, 

673 
Wedderburn  v.  Weddtrburn, 

2  Keen,  722 ;  4  M.  &  Cr.  41 ; 

22  Beav.  84,    658,  744,  745,  794,  797, 

798 
Weed  v.  Kellogg,    6  McLean, 

44,  ....  -  833 
V.  Peterson,  12  Abb.    Pr. 

N.  S.  178,        -        -        -       -      670 


clxxxii 


Wee.] 


TABLE  OF  CASES. 


[Wes. 


Weed  V.  Richardson,  2  Dev.  & 

Bat.  L.  535,     -        -        -       347, 363 
Weeks  v.  Mascoma  Rake  Co, 

58N.  H.  101,  -        -        -       299,431 
Weems  V.  Stalliugs,  3  Har.  & 

J.  865, 43 

Weil  V.  Guerin,  42  Oh.  St.  299, 

303, 454 

V.  Jones,  70  Mo.  560,      718,  733, 

1079 
Weinrich  v.  Koelling,  21  Mo. 

App.  133,        ...        -    1133 
Weisman    v.    Smith,   6  Jones 

(N.  Ca.),  Eq.  124,    -        -        -      942 
Weissenborn   v.    Seighortner, 

21  N.  J.  Eq.  483,     - 
Welboru  v.  Coon,  57  Ind.  270, 


992 

717, 
723 
403 


Weld  V.  Peters,  1  La.  Ann.  433, 
Weldon   v.    Beckel,    10   Daly, 

473, 761 

Welker  v.  Wallace,  31  Ga.  362,  483 
Welland  v.  Huber,  8  Nev.  203,  961 
Welles  V.  March,  30  N.  Y.  344,      338, 

340,  583 
WellesforJ  v.  Watson,  L.  R.  8 

Ch.  App.  473,         -        -        -      233 
Well  man   v.    Barker,  3  Oreg. 

253,         ...        -       990,  999 

V,  Southard,  80  Me.  425,  -      453 

Wellover  v,    Soule,    30   Mich. 

481, 1125 

Wells    V.   Babcock,   56  Mich. 

276,        782,  788,  788,  917,  919,  1136 

V.  Carpenter,  65  111.   447,       893 

V.  Collins.  11  Lea.  213,     -      907 

V.  Ellis,  68  Cal.  243  (9  Pac. 

Rep.  80).         -      544,  588.  587,  1131 
V,  Erstein,    24  La.   Ann. 

817, 958 

V.  Evans.   20  Wend.    251 

(reversed  in  part  in  Evans  v. 
Wells,  Lockw.  Rev.  Cas.  890; 

22  id.  324),       -        -        -       353,415 
v.  Masterman,  3  Esp.  731,      441 

v.   Mitchell,   1    Ired.   (N. 

Ca.)  L.  484,    -       -        -       .    1037 


Wells  V.  Ross,  7  Taunt.  403,    -      707 

V.  Simmons,  66  Mo.   617, 

620, 138 

V.  Strange,  5  Ga,  23,        930,  932 

V.  Turner,  16  Md.  133,     317,  333 

V.  Wells,  1  Ventr.  40,       -      893 


Wells,  Fargo  &  Co.  v.  Clark- 
son,  5  Montana,  330,  -  -  1094 
Welsh  V.  Canfield,  CO  Md.  469,  230 
V,  Speakman,  8  Watts  & 

S.  357,  ...  -  1147,  1154 
Wendall  v.  Osborne,  03  Iowa, 

99, 1005 

Wentworth  v.  Raiguel,  9Phila. 

275  (s.  c.  as  Raiguel's  Appeal, 

80  Pa.  St.  234),  -  455.  645,  761 
Werner  v.  Leisen,  31  Wis.  169,       73, 

591,  910.  939 
Wesson  v.  Newton,  10  Cush. 

114, 337 

West  v.  Chasten,  13  Fla.  315,  -     533, 

532,  551 
v.   Citizens'   Ins.    Co.  37 

Oh.  St.  1  (22  Am.  Rep.  294),     272. 

1024 

v.  Kendrick,   46  Ga.   526,     1081 

V.  Randall.  2  Mason,  181,       7J0 

V.  Skip,  1  Ves.  Sr.  239,     -      184, 

544,  810 
V.  Valley  Bank,  6  Oh.  St. 

168,  ...  -  172,  195 
West  Branch  Bank  v.  Fulmer, 

3  Pa.  St.  399,  -        -       399,  400 

West   of  England,  etc.    Bk.  v. 

Murch,  L.  R.  23  Ch.  D.  138,  394 
West   Hickory   Min.    Ass'n  v. 

Reed,  80  Pa.  St.  38,  -  290,  298 
West  Point  Foundry  Ass'n  v. 

Brown,  3  Edw.  Ch.  384,  -  89 
Westbay    v.    Williams,  5  111. 

App.  531,  -  -  -  -  833 
Westcott,    Ex  parte,   L.  R.    9 

Ch.  App.  626,  -  -  836,  844 
V.   Nickerson,    120  Mass. 

410, COS 

V.  Price,  Wright  (O.),  330,       78, 

883 


clxxxiii 


Wes.] 


TABLE  OF  CASES. 


[Wm. 


Westerlo  v.  Evertson.lWend. 

632,  -  .  -  -  852,  861 
Western  Assur.  Co.  v.  Towle, 

65  Wis.  247,  -  -  -  331,  332 
Western  Stage  Co.  v.  Walker, 

2  Iowa,  504,  431,  432,  433,  686,  707 
Weston,  Ex  parte,  12  Met.  1,        452, 

453,  829 
V.  Barton,  4  Taunt.  673,     649,  651 

V.  Kftcham,  39  N.  Y.  Su- 
perior Ct.  54,  -        -       305,  428 

Westphal  v.  lleunoy,  49  Iowa, 

542,  ....       930,  932 

Wetherbee  v.  Potter,  99  Mass. 

854, 875 

Wetherwax  v.  Paine,  2  Mich. 

555, 1125 

Wetraore   v.   Baker,  9  Johns. 

307,  ....         06,  861 

V.    Woodbridge,     Kirby 

(Conn.),  104,  ....      849 

Wetter   v.   Schheper,  4  E.  D. 

Smith,  707  ;   15  How.  Pr.  208,      338, 

340,  403 
Weyer  v.  Thorn  burgli,  15  Ind. 

124,  -        -        824,  825,  828,  832 

Whaley  v.   Moody,  2  Iluniph. 

(Tenn.)^95,  ....  349 
Wharton   v.  Douglass,  76  Pa. 

St.  273, 850 

V.  May,  5  Ves.  27,     -        -      904 

V.   Woodburn,    4   Dev.   & 

Bat.  L.  507,  -  348,  418.  422,  423 
Wheat  V.    Hamilton,   53   Ind. 

256,  -  -  175,  507,  511,  640 
Wheatcroft  v.  Hickman,   9  C. 

B.  N.  S.  47  (s.  c.  on  appeal  as 

Cox  V,  Hickman),  -        -        19 

Wheatley  v.  Calhoun,  12  Leigh 

(Va.),  204  (37  Am.  Dec.  054),     282, 

287,  839 

V.  Tutt,  4  Kan.  240,  -    334,  1088 

V.  Wheeler,  34  Md.  02,     978,  979 

Wheeler,  Ex  parte.  Buck.  25,        541 

V.  Arnold,  30  Mich.  304,  -      864 

V.  Farmer,  38  CaL  203.      59.  69, 

"  fc94 
clxx 


Wheeler    v.    McEldowney,   CO 

111.  358, 94 

V.  Page,  1  Wall.  518,        -      306 

V.  Rice,  8  Cush.  205,         -      365 

V.  Van  Wart,  9  Sim.  193,       574 

V.  Wheeler,  111  Mass.  247,       864 

Wheelock  v.  Doolittle,  18  Vt. 

440(40  Am.  Dec.  103),  -  703,  705 
Whelen  v.   Watraough,   15  S. 

&  R.  153,  ....  274 
Whetham  v.  Davey,  30  Ch.  D. 

574, 185 

Wlietstone   v.   Shaw,    70    Mo. 

575,  ....  860,  862 
Whigbam's  Appeal,  63  Pa.  St. 

194,  .        .        .    548,  1101,  1108 

Whincup  V.  Hughes,  L.  R.  6  C. 

P.  78, 807 

Whipple  V.   Parker,    29  Mich. 

309,  -  -  .  0,  8,  72,  208 
Whitaker  v.  Bledsoe,   34  Tex. 

401, 881 

V.   Brown,   16  Vvend.  505 

(overrules  s.    c.    11  id.  705),     348, 

361,  370,  481 

V.  Salisbury,  15  Pick.  534,      530 

Whitcher  v.    Morey,    39    Vt. 

459,  ....       115,  117 

Whitcomb    v.    Converse,    119 

Mass.  38  (20  Am.  Rep.  311),  -      181, 

231,  813,  816,  819 

V.  Whiting,  Dougl.  052,    -      705 


White,  Ex  parte,   L.   R.  6  Ch. 

397, 481 

,  In  re,  4  Ont.  App.  410,    -  634 

V.   Ansdell,  Tyr.    &   Gra. 

785, 879 

V.  Barton,  18  Beav.  192,   -  972 

v.  Bullock,  18  Mo.  16,       -  817 

V.  Chapin,  134  Mass.  230,  -  716 

V.  Conway,  GO  Cal.  383,    -  970 

V.  Cox,  3  Hay.  (Tenn.)  79,  309 

V.  Davidson,  8  Md.  169,    -  350 

v.    Dougherty,     Mart.    & 


Yer.  (Tenn.)  309,     184,  820,  842,  848 


V.  Fitzgerald,  19  Wis.  480, 


64 


V.  Gardner,  37  Tex.  407,    598,  742 

xiv 


Whl] 


TABLE  OF  CASES. 


[Wm. 


White  V.  Gibson,  11  Ired.  L. 

283, 1153 

V.  Hale,  3  Pick.  291,         -      705 

V.  Harlow,  5  Gray,  463,    -      852 

V.  Jones,  38  111.  159,      1105,  1111 

V.  Joues,  14  La.  Ann.  681,      381, 

692 

V.  Jones,    1  Robt.  321;  1 

Abb.  Pr.  (N.  S.)  328.      -       664,  669 

V.  Kearney,   2  La.  Ann. 

639,         ....       322,  707 

V.  Lea\itt,  20  Tex.  703,     -     1094 

V.  Magann,  65  Wis.  80,     644,  983 

V.    Murphy,   3    Rich.    L. 

369, 612 

V.  Parish,  20  Tex.  088,     551,  560, 

713,  824 

V.  Russell,  79  111.  155,       735,  730 

V.  Savery,  50  Iowa,  515,  -     1024 

V.    Schuebly,    10   Watts, 

217, 1119 

V.  Smith,  12  Rich.  (S.  Ca.) 

L.  595.  ....  463,  471 
V.    Thielens,    106   Pa.    St. 

173,  ....       510,511 

V.  Toles,  7  Ala.  509,  -        -      411 

V.  Tudor.  24  Tex.  639  (T. 

V.  W.  27  id.  584),  -     618,  690,  695, 

1171 
V.  Union  Ins.  Co.  1  Nott 

&  McC.  556  (9  Am.  Dec.  726),     723, 

732 
V.   Waide,    Walk.    (]\Iiss.) 

263,         ....       735,  849 

V.  White,  5  Gill,  359,       570,  934 

V.  White,  4  Md.  Ch.  418,  -      931 

V.  Williams,  Willm.  Woll. 

&  Hod.  52,  ....  437 
V.  Woodward,  8  B.  Mon. 

484,  1101,  1105,  1109,  1111,  1112 
Whiteliead  v.  Bank  of  Pitts- 
burg, 2  Watts  &  S.  172,  695,  1105 
V.  Chadwell,  2  Duvall,  432,       827 

V.   Hughes,  2  Cr.    &  M. 

318;  4  Tyiwh.  92,  -        -        -     1020 
Whitehill  v.    Shickle,  43  Mo. 
637,         ....         56.  879 


Wliite  Mountain  Bank  v.  West, 

46  Me.  15,        -        -        -       259,  262 

Whitesides  v.  Collier,  7  Dana, 

283.  ....       274,  275 

V.  Lafferty,  3  Humph.  150.       795 

V.  Lee,  2  111.  548,      -     627,  1073 

Whiting  V.  Farrand,  1  Conn. 

00, 707 

V.  Leakiu,  66  Md.  255,     43,  571, 

948,  1142,  1147 

V.  Withington,    3  Gush. 


413, 


1094 
181 


Whitis  V.  Polk,  36  Tex.  C03,     - 

Whitley  v.  Lowe,  25  Beav.  421 ; 
2  DeG.  &  J.  704.     -        -        -      705 

Whitlock    V.     McKechnie,     1 

Bosw.  427.      -        -        -     191,  1025 

Whitman  v.  Boston  &  Me.  R. 

R.  3  Allen,  133,      -        -        -      293 

V.  Keith,  18  Oh.  St.  134,  -     173, 

1059,  lOai,   10a2,  1091),  1128 

V.  Leonard,  3  Pick.  177,   -     341, 

589,  626 

V.  Porter,  107  Ma.ss.  522,     72,  73 

458,  ",(50 

V.  Robinson,  21  Md.  30,   -     574, 

594,  597,  998 

V.  Wood,  6  Wis.  [G70J.  Co2,     1073 

Whitmore,  Ex  parte,  3  M.  & 
A.  627 ;  3  Deac.  365  iS.  C.  on 
appeal  as  Ex  parte  Jackson, 
2  M.  D.  &  D.  146),  -       512,  516 

V.  Adams,  17  Iowa,  507,  -      349 

V.    Mason,    2    Johns.    & 


Hem.  204,      -        -        -        . 
—  V.  Parks,  3  Humph.  95, 


246 

561. 

569 

V.  Shiverick,  3  Nev.  238.      184, 

186,  1086,  1129 
Whitney  v.  Burr,  115  111.  289,  -      788 

V.  Cook,  5  Mass.  139,      336,  337, 

714 

V.  Gotten,  53  Miss.  689,   -     283, 

290,  291,  293,  294,  822,  931,  940 

V.  Dean.  5  N.  II.  249.        505,  568 

V.   Dutcli.  14  M  It;  •..  457  (7 

Am.  Dec.  22D).        -        -       142,  145 


clxxxv 


Wm.] 


TABLE  OF  CASES. 


IWiu 


Whitney  v.  Farrand,   1  Conn. 

(50, 707 

V.  LacUI,  10  Vt.  165,  -        -     1105 

V.  Ludiiigton,  17  Wis.  140,   35,  88 

V.  Punington,  59  Cal.  36,      862 

V.    Reese,    11    Minn.    138 

(overruled).     -        -        -    703,  1094 

V.  Sterling,  14  Johns.  215,    1145, 

1151,  1155 
Whittier  v.    Gould,    8  Watts, 

485, 534 

Whittaker   v.  Howe,  3  Beav. 

3S3,         -        -        -        -       314,  678 
Wliittemore  v.  Elliott,  7  Hun, 

518,  -        .        -     147,  149,  1099 

Whittenton  Mills  v.  Upton,  10 

Gray,  583,       -        -        -        -       133 
Whittle      V.      McFarlane,       1 

Knapp,  311.    -        -        -        -      770 

V.  Skinner,  23  Vt.  531,      -      548 

Whitton   V.  Smith,    1    Freem. 

(Miss.)  Ch.  172,       -        -       403,  587 

V,  State,  37  Miss.  379,        -      488 

Whitwell  V.  Arthur,  35  Beav. 

140, 581 

V.  Warner,  20  Vt.  425,      -      498 

Whitworth  v.  Ballard,  56  lud. 

279, 690 

V.  Benbow,  56  Ind.  194,   -      551 

V.  Harris,  40  Miss.  483,      -     1014 

V.  Patterson,  6  Lea,  119,  -       43, 

105,  155,  338,  608 
Wickham  v.   Davis,  24  Minn. 

167,         -        .        .        .    930,  1109 

v.  Wickham,  2  K.  &  J.  478,     330, 

331 
Wickliflfe  v.  Eve,  17  How.  468,     739, 

923 
Wicks   V.    Lippman,    13  Nev. 

499,  -        -        -        858, 887,  893 

Widdifield    V.    Widdifield,    2 

Bin.  245,         -        -        -        -     1145 
Wiegand  v.  Copeland,  14  Fed. 

Rep.   118;   7  Sawy.  442,     281,  970, 

974,  977 
Wiesenfeld  v.  Byrd,  17  S.  Ca. 

106,         -        -        454, 494,  727,  749 

clxx 


Wiesenfeld   v.  Stevens,   15  S. 

Ca.  554, 561 

Wiggin  V.   Cumings,  8  AUen, 

353, 864 

V.  Goodwin,  63  Me.  389,  -     585, 

629,  630 

V.  Lewi.s.  12 Cush. 48G,    349,  1094 

Wiggins  V.  Graham,  51  Mo.  17,        43 

V.  Hammond,  1  Mo.   121,      446 

Wightman  v.   Tovvnroe,  1  M. 

&  S.  412,  ...  -  51 
Wilby   V.    Phiuney,    15  Mass. 

116,  -        735,  772,  b58,  864,  886 

V.  Sledge,  8  Ga.  532,         -     1049 

Wilcox  V.  Dodge,  12  III.  App. 

517, 416 

V.   Jackson,    7  Colorado, 

521,    -   .   325,  338,  403,  406 

560 
1150 

336 

722 

297 

106/ 


V.  Kellogg,  11  Oil.  394,  - 
V.  Matthews,  44  Mich.  192, 
V.  Singletary,  Wright  (O.), 


420, 


V.  Soper,  13  B.  Mon.  411, 
V.  Wilcox,  13  Allen,  252, 
V.  Woods,  4  111.  51,  - 


Wilcoxsou  V.  Burton,  27  Cal. 

228,  ....       377,  378 

Wild  V.  Davenport,  48  N.  J.  L. 

129.  .        -       23.  51,  52.  53,  601 

V.  Dean,  3  Allen,  579,     502,  503, 

505,  832 

V.  Milne,  26  Beav.  504,     974,  977 

Wilde,    Succession  of,  21  La. 

Ann.  371,        ....      764 

V.  Jenkins,  4  Paige,  481,   -    261, 

205,  534,  962 

Wilder  v.  Keeler,  3  Paige,  107.      747, 

750,  825,  832,  842,  848 

V.  Morris,  7  Bush,  420,       -      764 

V.    Savannah,    70  Ga.  700 

(48  Am.  Rep.  598),  -        -      175 

Wildes   V.    Chapman,    4  Edw. 

Ch.  (N.  Y.)C09,       -        -       552,554 

V.  Fessenden,  4  Met.  12,     505,  519 

Wiles   V.  Maddox,  26   Mo.   77.      1101. 

1105,  1106,  1109,  1111 

V.  March,  30  N.  Y.  344,     -      33'J 


XVI 


WIL.] 


TABLE  OF  CASES. 


[WiL. 


Wiley's  Appeal,  8  Watts  &  S. 

244, 668 

Wiley.  Re,  4  Biss.  214,  -  -  560 
V.   Bamngnrdner,  97   Ind. 

66  (49  Am.  Rep.  427),      -      664,  676 

V.  Giiswoli'l,  41  Iowa,  375,      331 

V.  Logan,  95  N.  Ca,  358,  -     1019 

V.  Sledge,  8  Ga.  533,      454,  746, 

1117 
Wilgus   V.   Lewis,  8  Mo.  App. 

336. 507,  508 

Wilhelni  v.  Caylor,  32  Md.  151,    899. 

943.  943,  946 
Wilkea  v.  Clark,  1  Dev.  (N.  Ca.) 

L.  173,  -  ~  -  -  -  33,  1022 
Wilkins  v.  Boyce,  3  Watts,  39,  490 
V.  Davis,  2  Lowell.  511 ;  15 

Baakr.  Reg.  60,     583,  753,  754,  1020 

V.  Earl,  44  N.  Y.  173,         -     1159 

530 


V.  Fitzhugh,  48   Mich.  78, 


V.  Pearce,  5  Den.  541  (affd. 

in  2  N.  Y.  469),  -  -  326,  348 
V.    Wardens,   etc.    of   St. 

Mark's  Cliurch.  52  Ga.  351,  -  75 
Wilkinson  v.  Frasier,    4  Esp. 

182, 16,  59 

V.    Gilchrist,  5  Ired.    L. 

228,'        -----     1057 

V,  Henderson,  1  M.  &  K. 

582,  -        -        -        -,       -      748 

V.   Jett,   7    Leigh    (Va.), 

115  (30  Am.  Dec.  493),  -        -  41,  43 


V.  Page,  1  Hare,  226, 


234 


V.  Tilden,  9  Fed.  Rep.  683,      990 

V.  Yale,  6  McLean,  16,     561,  562 

Willet  V.  Brown,  65   Mo.  138 

(27  Am.  Rep.  2G5),         -       281,  290 

V.  Chambers,  Cowp.  814,     199, 

475 
Willett  V.  Blanford,   1   Hare, 

253, 797 

- —  V.  Stringer,  17  Abb.  Pr. 

152,  -  -  -  403,  406,  481 
Willey  V,  Carter,  4  La.  Ann. 

56, 299 

V.  Thompson,  9  Met.  329,     531, 

611.  737 


William  Bagaley,  The,  5  Wall. 

377,  -  -  -  70.  401,  582 
Williams,  Ex  parte,  U  Ves.  3,     551, 

559,  679 
,  Ex  parte,  3  M.  D,  &  D. 

433, 837 

,  Ex  parte.  Buck.  13.       503,  1016 

,  Re,  3   Woods,   C.  C.   493,       195 

,  Re,  5   Boston  Law  Rep. 

402, 825 

V.   Adams,    16   111.    App. 

564, 560 

V.  Bariiett,  10  Kan.  455,  -     323, 

403,  545,  1044 

V.    Barton,    3   Bing.    139 

(affg.  5  B.  &  Aid.  395),        -      278 

V.    Beaumont,    10   Bing. 

260, 1031 

V.  Bingley,  2  Vern.  278,    -      990 

V.  Bowers,  15  Cal.  321,    -     612, 

613 

V.  Boyd,  75  Ind.  286,        -      534 

V.  BrimhalJ,  13  Gray,  462,     383, 

411,  1046,  1079,  1084 

V.  Butler,  35  111.  544,         -       105 

V.  Connor,  14  S.   Ca.   621,     1 IJ, 

117,  631,  113". 

V.  Donaghe,  1  Rand.  (Va.) 

300, 104:j 

V.  Frost,  27  ]\Iinn.  253,      -      340 

V.  Gage,  49  Miss.  777,     824,  1103, 

nil 
V.  Gilchrist,  11  N.  H.  535,       347 

V.  Gillies,  75   N.    Y.    197 

(rev.  13  Hun,  423),        205,  303,  438, 

443,  445 

V.  Hamilton,  4  N.  J.  L. 

250, 1081 

V.  Hayes,  20  N.  Y.  58,      -      91 1 

V.  Henshaw,   11  Pick.  79 


(23  Am.  Dec.  366),       858,  864,  875. 

876,  877 

—  V.  Henshaw,  13  Pick.  378 

(23  Am.  Dec.  614),  -        -      864 

—  V.  Hitchings,  10  Lea,  326,       386 

—  V.  Hodgson,  2  Har.  &  J. 

474.  -        -        -        331,430,421 


clxxxvii 


WlL.] 


TABLE  OF  CASES. 


[Wiu 


Williams  v.  Jones,  5  B.  &  C. 

108,         .        -        -         85,  208,  221 

V.  Lawrence,  47  N.  Y.  463,        70 

V.  Lawrence,  53  Barb.  320,       184 

V.  Love,  2  Head,  80,       184,  290. 

295,  739,  822 

V.  Mathews,  14  La.  Ann. 

11, 610 

V.  Manning.  41  How.  Pr. 

454  (Ct.  App.   1870,  not  else- 
where reported),    -        -        -      700 

V.   Moore,  Pliila.  (N.  Ca.) 

Eq.  211,  -        -        -        -     735.  1003 

V.  More,  G3  Cal.  50,  -       381,  437 

V.  Muthersbaugh,  29  Kan. 

730,  -        -        -    456,  1117,  1119 

V.  Roberts,  6  Cold.  403,     -    335, 

338,  403 
V.  Rogers,  14  Bash,  776,     -      54, 

822,  323,  454,  456,  459,  533,  537,  610, 

638.  1094,  1147 

V.  Saginaw.  51  Jlich.  120.       176 

V.  Smith,  4   Bush,   510,     1109. 

1111 

V.  Sommerville,  8  Leigh, 

415, 403 

V.  Soutter,  7  Iowa,  435,     23,  47, 

88,  1135.  1143,  1158 

V.  Thomas,  6  Esp.  18,      345,  439 

V.  Walbridge,  3  Wend.  415,     347, 

363 

V.  Whedon,   39  Hun,  98,      720, 

733 

V.  Whitmore,  9  Lea,  263,       709 

V.  Williams,  L.   R.  3  Ch. 

App.  294,  -  ...  209 
V.  Wilson,   4  Sandf.  Ch. 

379,  ....  058,  607 
Williamson  v.  Adams,  16  Hi. 

App.  564,  -  .  .  551,  554 
V.     Fontain,    7     Baxter 

(Tenn.),  212,  -        -        -       290,  297 

V.  Haycock,  11  Iowa,  40,      849, 

863 
V.  Johnson,  1  B.  &  C.  146; 

2  D.  «&  R.   281   (explained  in 

Faith  V.  Richmond),      -        .      203 


Williamson  v.  McGinnis,  11  B. 
Mon.  74,         ....      385 

V.  Wilson,  1  Bland  (Md. 

Ch.),418,        -        -        -       593,994 

Willings  V.  Consequa,  Pet.  C. 

C.  301-307,  ....  885 
Willis    V.    Bremner,   60    Wis. 

633,  -  .  .  446,449,566 
V.  De  Castro,  3  C.  B.  N.  S. 

216, 386 

V.  Dyson,  1  Stark.  164,     -      325 

V.  Freeman,  35  Vt.  44,    180,  281, 

1111 

V.  Henderson,  43  Ga.  324,     1113 

V.  Hill,  2  Dev.  &  Bat.  (N. 

Ca.)  L.  231,  -  438,  446,  700,  705 
V.   Jernegan,  2  Atk.   251,       954 

V.  Morrison,  44  Tex.  27,  -    1094 

Wills  V.  Cutler,  61  N.  H.  407,      334 
V.  Simmonds',  8  Hun,  189 

(affg.  51  How.  Pr.  48),  42,  874,  889 
Willson  V.  Nicholson,   61  Ind. 

241,         -        -        -       715,  723,  731 

V.  Owen,  30  Mich.  474,     73,  1 15, 

137 
Wiln\er  v.  Currey,  3  De  G.  & 

Sm.  347,  -        -       239,  455,  643 

Wilson,  Ex  parte,  L.  R.  7  Ch. 

App.  490.        ....      841 

V.  Albright,  2  G.  Greene 

(Iowa),  125,    •-        -        .        -    1125 

V.  Bailey,  9  Dowl.  P.   C. 

18  (s.  c.  as  Wilson  v;  Lewis, 

2  M.  &  G.  197),        -        -      847,  509 

V.  Bell,  17  Minn.,  61,        .      311 

V.   Brown,    6  Ont.    App. 

411,  -        -        329.  349,  371,  430 

V.  Campbell,  10  ill.  38;J,     78,  870 

V.  Clarke,  27  Miss.  270,     -     1163 

V.    Cobb,   28    N.    J.    Eq. 

177, 3 

V.  Col  man,  1  Cranch,  C.  C. 

408,  ....   1147,  1155 

V.  Conine,  2  Johns.  280,   .   1111, 

1112 

V.  Cutting,  10  Bing.  436,      87!) 

V.  Dargan,  4  Rich.  L.  544,      424 


clxxxviii 


WlL.] 


TABLE  OF  CASES. 


[Win. 


Wilson  V.  Davis,  1  Montana, 

183,  -  -  544,  587,  591,  820 
V.  Dosier,  58  Ga.  603,      3G5,  510, 

515 
V.  Elliott,  57  N.  H.  31G,      876, 

408 

V.  Forder,  20    Oh.   St.   89 

(5  Am.  Rep.  627),  -  -  -  698 
V.  Genesee  Mut.  Ins.   Co. 

16  Barb.  511,  -  -  -  273 
V.  Greenwood,  1  Swanst. 

471,         246,  563,  583.  591,  679,  995, 

996,  997,  1003 
V.  Home,  37  Miss.  477,      -      456 

V.  Hunter,  14  Wis.  [683], 

744,  -  -  -  293,  416,  417 
V.  Jennings,  4  Dev.  L.  90,       524 

V.   Johnstone,    L.    R.    16 

Eq.  605,  -        -        805,  806,  809 

V.  Keedy,  8  Gill,  195,        -     1081 

• V.   King,   Morris    (Iowa), 

105.  ...  -  1059,  1065 
V.  Lewis,  2  M.  &  O.   197 

(S.  C.  as  Wilson  v.  Bailey,  9 

Dowl.  P.  C.  18),  -  -  317,  509 
■ V.  Linoberger,  83  N.   Ca. 

524,         -        -        -       217,  766,  775 

V.  Lloyd,  L.  R.  16  Eq.  60,       533 

V.  Loomis,  55  111.  353,      139,  140 

V.    McCarty,   25    Grant's 

Ch.  (Up.  Can.)  153,  781,  783,  788 
V.  McConnell,  9  Rich.  Eq. 

600, 825 

V.  Mower,  5  Mass.  411,     -      383 

V.  Niles,  2  Hall  (N.  Y.), 

358, 1089 

V.  Richards,  28  Minn.  337,     323, 

341,  351 

V.  Robertson,  21  N.  Y.  587,      566 

V.  Runkel,  38  Wis.  526,     -     1081 

V.  Simpson,  89  N.  Y.  619,      218, 

593 
V.  Soper,  13   B.  Mon.  411 

(56  Am.  Dec.  573),       550,  559,  560, 

629,  715,  718,  726,  731,  733,  739,  7-13, 

851 
V.  Stanhope,   2  Coll.  629,       914 


Wilson  V.  Stilwell,  9  Oh.  St. 

467, 637 

V.  Stilwell,  14  Oh.  St.  464,       532 

V.  Strobach,  59  Ala.  488,      928, 

1109,  1111,  1113 
V.  Torbert,  3  Stew.  (Ala.) 

206  (21  Am.  Dec.  632).  -      701 

V.  Turnman,  Q  M.  &  G. 

236, 469 

V.  Wallace,  8  Serg.  &  R. 

53. 1019,1023 

V.  Waugh,  101  Fa.  St.  233,      704 

V.  Whitehead,  10  M.  &  W. 

503, 374 

V.   Williams,    14    Wend. 

146  (28  Am.  Dec.  518),   -    349,  358. 

363,  363 
Wilt  V.  Bird,  7  Blackf.  258,  -  850 
Wirapee    v.    Mitchell,   29   Ga. 


^6, 


839 

1153 

868 


Winchester    v.    Whitney,    138 
Mass.  549,       -        .        -        - 

Windham     v.     Patterson,     1 

Stark.  144,      - 
Windham  Co.  Bk.  v.  Kendall, 

7  R.  L  77,       -        348,  399,  401,  480 
Winship  v.    Bank    of  United 

States,  5  Pet.  529  (5  Mason, 

176),         150,  156,  157,  193,  203,  321, 

333,    337,  341,   348,    351,   370,   443, 

459,  1153 
Winslow  V.    ChifTelle,    Harp. 

(S.  Ca.)  Eq.  25,       -        -       282,286 

V.  Newlan,  45  111.  145,     383,  700 

Winsor  v.   Savage,  9  Met.  346,       788 
Winston  v.  Ewing,  1  Ala.  129 

(34  Am.  Dec.  76S),  -        -    1103 

V.  Taylor,  28  Mo.  83,        -      508 

Winter  v.   lunes,  4  My.  &  Cr. 

101,         ....       748,750 
V.  Wheeler,  7  B.  Mon.  25,       962 


Winters,  Estate  of,  1   Myrick 
(Cal.),  Prob.  Rep.  131,  - 

Wintersmith  v.  Pointer,  2  Met. 
(Ky.)457,         -        -        - 

Winile  V.  Crowther,  1  Cr.  &  J, 
313;  9  L.  J.  Ex.  65, 
clxxxix 


-     1111 


445 


Wm.] 


TABLE  OF  CASES. 


[Woo. 


Wirthman  v.   Miles,    1  Stark. 

181, 286 

Wise  V.  Copley,  36  Ga.  508,    -     430, 

1083 
V.   Frey,   7  Neb.    134  (29 

Am.  Rep.  380),  -  -  -  1131 
V.  Patterson,  3  G.  Greene 

(Iowa),  471,  ...  -  1162 
Wish  V.  Small,  1  Camp.  331,  -  45 
Wisham  v.  Lippincott,  9  N.  J. 

Eq.  353, 847 

Wiswall   V.    Ayres,    51    Mich. 

324, 984 

Wit  Cher  v.    Brewer,    49  Ala, 

119, 463 

Witherhead  v.  Allen,  28  Barb. 

661, 1094 

Withers    v.    Withers,    8  Pet. 

3 '5,  -  -  237,  766,  978,  979 
Withington  v.  Herring,  3  Moo. 

&  P.  30, 44 

Witraer  v,  Schlatter,  2  Ravvie, 

359,         ..-.'.  8 

Witt    V.    Corcoran,    cited    in 

notes  to  Wellesford  v.  Wat- 
son, L.  R.  8  Ch.  A  pp.   on  p. 

-<7(3.  and  further  explained  in 

Pl*^ws  V.  Baker,  L.  R.  16  Eq. 

564,  571,  -        -        -        -      233 

Witter  V.  McNeil,  4  111.  433,     -      419 

V.  Richards,  10  Conn.  37,      155, 

385,  928,  1099 
Wittner  v.  Schlatter,  15  S.  & 

R.  150, 1160 

Wittowsky  V.  Reid,  83  N.   Ca. 

116, 489 

Wittram  v.  Van  Wormer,  44 

111.  525,  ...  -  347,  446 
Woddrop  V.  Price,  3  Desaus. 

(S.  Ca.)  203,  -  -  -  -  825 
Wolbert  v.  Harris,  19  Grant's 

Cli.  (Up,  Can.)  141,        -        -      996 

V.  Harris,  7  N.  J.  Eq.  605,       991 

Wolcott  V.  Gibson,  51  111.  69,  111 
Wolf  V.  Mills,  56  111.  360,  -  472 
Wolfe  V.  Gilmer,   7  La.    Ann. 

583, ISl 


Wolle  V.  Brown,  4Whart.  365,     1145 
Wood's  Estate,  1  Ashm.  (Pa.) 


514, 


739 


Wood,  Ex  parte,  2  M.  D.  &  D. 

283, 835 

,  Ex  parte,  10  Ch.  D.  554,     541, 

553 

V.  Barber,  90  N.  Ca.  76,     703,  705 

V.  Beath,  23  Wis.  254,      32,  228, 

591 

V.  Braddick,  1  Taunt.  104,     331, 

699 

V.  Connell,  1  Whart.  381,      429 

V.  Connell,  2  Whart.  542.      156, 

161 

V.  Cullen,  13  Minn.  394,   -       86, 

854,  1057 

V.  Dodgson,  2  M.  &  S.  195 ; 

2  Rose,  47,      -        -        -        -      846 

V.  Duke  of  Argyle,  6  Man. 

&  Gr.  926,       -        -        -  89,  98 

V.  Dutchman,  80  Ind.  524,      8.")9 

V.  Erie  R.  R.  Co.  72  N.  Y. 

190  (affg.  9  Hun,  648),   -        -      198 

V.  Fox,  1  A.  K.  Mar.  (Ky.) 

451, 575 

V.  Gault,  2  Md.  Ch.  433,     575, 

954 

V.  Johnson,  13  Vt.  191,     -      899 

V.  Luscomb,  23  Wis.  287,     463, 

471 

V.  Merrow,  25  Vt.  340,      -      899 

V.  Montgomery,    00  Ala. 

500, 285 

V.  O'Kelley,  8  Gush.  406,       1022 

V.  Pennell,  51  Me.  53,     91,  93,  94, 

90,  97,  1157 

V.  Scoles,  L.  R.  1  Cli.  App. 

369,  -        -        251,  785,  813,  816 

V.  Shepherd,  2  Patt.  &  H. 

(Va.)  442,        -        -        -       336,  544 

V.  Vallette,  7  Oh.  St.  173,        49 

V.  Wilson,  3  Cr.  M.  &  R. 

241, 234 

V.  Witiierow,  8  Phila.  517. 


(Reversed  b}'  Meily  v.  Wood, 
71  Pa.  St.  488,  q.  v.) 


cxc 


Woo.] 


TABLE  OF  CASES. 


[Wri. 


Wood  V.  Woad,  L.  R.  9  Ex. 

190,        -       -       -       -      241,  243 

V,  Wood,  26  Barb.  356,    -      775 

Woodbridge  v.  Swann,  4  B.  & 

Ad.  633,  ....      755 

Woodburn  v.  Winship,  12  Pick. 

430, 426 

Woodbury  v.  Sackrider,  2  Abb. 

Pr.  402,  ....      400 

Woodford  v.  Dorwin,  3  Vt.  83 

(21  Am.  Dec.  573),         -        -      691 
Woodling    V.    Knickerbocker, 

31  Minn.  268,  -        -       466, 467 

Woodmansie  v.  Holcomb,  34 

Kan.  35,         ....      568. 
Woodruff   V.    King,   47    Wis. 

261,         -       -       -       407, 418,  607 
Woods  V.  Quarles,  10  Mo.  170,    1139, 

1143 
V.  Wilder,  43  N.  Y.  164  (3 

Am.  Rep.  684),       -       -       -      582 
Woodward  v.  Clark,  30  Kan. 

78, 101 

V.  Cowing,  41  Me.  9,        -  37,  75 


V.  Francis,  19  Vt.  434, 
V.  Horst,  10  Iowa,  120, 
V.  Lazar,  21  CaL  448, 
V.  Newhall,  1  Pick.  500, 


629 

565 

674 

148, 

1094 


V.  Schatzell,  3  Johns.  Ch. 

412, 995 

V.  Winfrey,  1  Cold.  478,  -      629 

V.  Winship,  12  Pick.  430,     320, 

321,  367 
Woodworth  v.  Bennett,  43  N. 

Y.  273,  113,  119,  120,  121,  127,  128 
V.  Downer,  13  Vt  522  (37 

Am.  Dec  611),       -       -      694,  701 

V.  Fuller,  24  111.  109,        -    1067 

V.   Spafford,    2   McLean, 

168,  ....  454,  535 
Woody  V.  Pickard,  8  Blackf. 

55, 336 

Woolans      v.    Vansickle,      17 

Grant's  Ch.  (Up.  Can.)  451,  -  986 
Wooldridge  v.  Irving,  23  Fed. 

Rep.  676,        -        -        -     338,  1131 

N  cxci 


Wooldridge  v.Wilkins,  3  How. 

(Miss.)  360,     -       -       -      285,  290 
Worcester     Corn     Exchange 

Co.,  Re,  3  DeG.  M.  &  G.  180,      371 
Workman  v.    McKinstry,    21 

Up.  Can.  Q.  B.  623,      -       329,  364 
Woiman  v.  Giddey,  30  Mich. 

151,         ....     560,  1133 
Woimser  v.  Meyer,  54  How. 

Pr.  189, 302 

Worth  V.  Bloss,  30  N.  Y.  374, 

151 

251 
930 


380, 


Worthington  v.  Macdonnell,  9 

Duval  (Canada),  327,    - 
V.  White,  42  Mo.  462, 


Worthy  v.  Brower,  93  N.  Ca. 

344,  ....  181,  923 
Wotherspoon  v.  Wotherspoon, 

49  N.  Y.  Superior  Ct.  152,  -  1154 
Wray  v.  Milestone,  5  M.  &  W. 

21, 858 

Wrenshall  v.  Cook,  7  Watts, 

464,  -  -  -  1079,  1080,  1034 
Wrexham    v.    Huddleston,     1 

Swanst.  504,  n.,  -  -  -  581 
Wright  V.  Ames,  3  Keyes,  231 ; 

4  Abb.  App.  Dec.  644,  -     333,  1041 

V.  Boynton,  37  N.  H.  9,    97, 1086 

V.  Brosseau,    73  III.  381,     352, 

363,  507,  509 

V.  Cobleigh,  21  N.  H.  339,     849, 

856,  861 
V.  Condict  (Supr.  Ct.  U.  S. 

1881),  26  Coop.  562,        -    753,  1026 

■ V.  Court,  2  C.  &  P.  233,     -      331 

V.  Cumpsty,  41  Pa.  St.  103,      865 

V.  Curtis.  37  111.  514,         -    1067 

V.  Davidson,  13  Minn.  449,        35 

V.  Delaware  &  Hudson  Ca- 


nal Co.  40  Hun,  343,      -        -        43 

V.  Funck.  94  Pa.  St.  26,    -    1165 

V.  Herrick,  125  Mass.  154,     1032, 

1053,  1053 

V.  Hooker,  10  N.  Y.  51,     195,  441 

V.  Hunter,  1  East,  20,      70,  457, 

845 
V.  Hunter,  5  Ves.  792,       -      759 


Wri.] 


TABLE  OF  CASES. 


[You. 


Wright  T.  Jacobs,  61  Mo.  19,  -     850, 

853,  858 

V.  Michie,  6  Gratt.  354.    -      876 

V.  Powell,  8  Ala.  560,       -        91 

V.  Russell,  2  W.  Bl.  934; 

3  Wils.  530,    ....      650 

V.   Storrs,   6   Bosw.   600, 

609  (affd.  31  N,  Y.  691),         -      713 

V.  Swayne,  5  B.  Men.  441,     456, 

458 

V.  Troop,  70  Me.  346,      639,  630, 

854 

V.  Ward,  65  Cal.  525,      907,  931, 

933,  1105,  1111,  1113 
Wycoff  V.   Purnell,    10   Iowa, 

333,         ....      858,  862 
Wylie  V,  Wylie,  4  Grant's  Ch. 

Up.  Can.  278,         -        -      290,  297 
Wyman   v.  Chicago   &  Alton 
R.  R.  4  Mo.  App.  35,     -        -        67 

V.  Stewart,  42  Ala.  163,    -   1062, 

1064 
Wynne    t.     Millers,     61    Ga. 
343 1071 


Y. 

Yale  V.  Eames,  1  Met,  486,    685,  690, 

698 
V.  Yale,  13  Conn.  185  (33 

Am.  Dec.  393),       -    184,  186,  1044 
Yandes  v.  Lefavour,  2  Blackf. 

371,         -        -        381,  681,  700,  704 
Yarbrough  v.   Bush,  69  Ala. 

170,         ....     137,  1064 
Yarnell  v.  Anderson,  14  Mo. 

619,         ....       536,  537 
Yates  V.  Finn,  13  Ch.  D.  839,      216, 

794,  797 

V.  Lyon,  61  N.  Y.  344,      -      147 

Yeager  v.  Wallace,  57  Pa.  St. 

305, 325 

Yeakle  v.  George,  12  Rich,  L. 

153, 1163 

Yeatman  v.  Yeatman,  7  Ch.  D, 
■     210,         ....       743,  926 


Yeoman  v.  Lasley,  40  Oh.  St. 

190,         -        -       -       -       32,  304 
Yocum  V.  Benson,  45  111,  435,    1071, 

1094,  1147 
Yohe  V.  Barnet,  3  Watts  &  S. 

81,  ...       816,  858,  860 

Yoho  V.  McGovem,  42  Oh.  St. 

11, 537 

Yonge,  Ex  parte,  3  Ves.  &  B. 

31,  -        -        -        313,  838,  839,  845 
York  V.  Clemens,  41  Iowa,  95,     301, 

303 

V.  Orton,  65  Wis.  6,  -        -      503 

York  Bank's  Appeal,  36  Pa.  St. 

458,  -        -        -     377,  379,  1064 

Yorkshire    Banking    Co.      v. 

Beatson,  4  C.  P.  D.  209;  s.  C. 

5  id.  109,         -        -        -       192,  443 
Youmans  v.  Heartt,  34  Mich. 

397, 491 

Young,   Ex    parte,   2  Ves.   & 

Bea.  343,         ....       70 

,  Ex  parte,  19  Ch.  D.  134,     1059 

,  Re,  3  Bankr.  Reg.  Ill,   -    1131 

V.  Allen,  52  Cal.  466,        -      930 

V.  Axtell,  2  H.  Bl.  242,      -        93 

V.  Brick,  3  N.  J.  L.  241,     70,  849 

V.  Brick,  3  N.  J.  L,  663,   -      856 

V.  Buckett,  51  L.  J.   Ch. 

504,         ....     660,  1001 

V.  Clute,  13  Nev.  31,        643,  769 

V.  Davidson,  31  Tex.  153,     1096 

V.  Frier,  9  N.  J.  Eq.  465,     824, 

929,  1109 

V.  Hunter,  4  Taunt.  583,    80,  446 

V.  Jones,  3  Hughes,  C.  C. 

274,         -        -        -        663,  669,  675 

V.  Keighly,  15  Ves.  557,    -     184, 

1111 

V.  Pearson,  1  Cal.  448,        208, 

936 

V.  Read,  25  Tex.  Sup,  113,    .363, 

1046,  1169 

V.  Smith,  25  Mo.  341,     109,  1143 

V.  Tibbitts,  33  Wis,  79,     -      620 


Younglove     v.     Liebhart,     13 
Neb.  557,        -       770,  852,  854,  1075 
cxcii 


Zab.] 


TABLE  OF  CASES. 


[ZUE. 


z. 

Z.  V.  X.  3K.  &  J.  441,      -       -     581 

Zabriskie  v.  Hackensack  &  N. 

Y.  R.  K.  18  N.  J.  Eq.  178,     433,  434 

Zimmerman  v.  Erhard,  8  Duly, 
311;  58  How.  Pr.  11  (atfd.  83 
N.  Y.  74),        -        -        -       189,  198 

- —  V,  Erhard,  83  N.  Y.  74,    139,  198 


Zimmerman  v.  Huber,  29  Ala. 

379,  -  303,  766,  767,  770,  968 
Zink  V.    Attenburg,    18  How. 

Pr.  108,  ....  1094,  1095 
ZoUar  V.  Janvrin,  47  N.  H.  324,     617, 

621,  1155 
Zuel  V.  Bowen,  78  DI.  334,       -    1073 


CZCIU 


THE  LAW  OF  PARTNERSHIP. 


PART  I. 

NATUHE  AND  FOMATION. 


CHAPTER  I. 

PARTNERS  AND  PARTNERSHIP  DEFINED. 

§  1.  Defluition. —  A  partnership  is  the  contract  relation 
subsisting  between  persons  who  have  combined  their  prop- 
erty, labor  or  skill  in  an  enterprise  or  business  as  principals 
for  the  purpose  of  joint  profit. 

A  great  number  of  definitions  have  been  collected  by  Sir 
N.  Lindley  in  his  admirable  work.^  He  refuses  to  recom- 
mend any,  but  says  that  most  of  them  are  open  to  the  criti- 
cism that  defining  a  partnership  as  an  agreement  to  combine 
property,  work  or  labor  is  broad  enough  to  include  a  corpora- 
tion. This,  however,  is  not  quite  correct,  for  an  agreement 
never  constitutes  a  corporation,  but  rather  the  action  of  the 
state  operating  upon  the  agreement  and  erecting  it  into  a  dis- 
tinct body.  All  the  definitions,  including  my  own,  would  be 
open.to  criticism  unless  the  word  "  persons"  be  interpreted  to 
include  conventional  and  artificial  persons  as  well  as  natural, 
for  a  firm  may  be  a  member  of  another  firm  and  a  corpora- 
tion also;  for  while  a  corporation  does  not  generally  have 
capacity,  as  we  shall  see,  to  become  a  partner,  the  reason  is 
not  in  the  nature  of  partnership,  but  in  want  of  power  in 
the  corporation,  and  power  being  granted  in  the  charter,  it 

1  Partnership,  vol.  1,  p.  1. 

Vol.  I  —  1  1 


§  2,  NATURE  AND  FORMATION. 

may  enter  a  partnership  with  an  individual  or  another  cor- 
poration. Jessel,  M.  R,,  in  Pooley  v.  Driver/  has  also  criti- 
cised Chancellor  Kent's  definition  as  not  including  the  case 
of  an  annuitant  or  an  executor,  who  contributes  neither 
property,  labor  or  skill,  and  yet  draws  a  share  of  the  profits; 
but  these  persons  are  not  partners,  nor  are  they  now  liable 
as  such  unless  they  interfere  in  the  management,  in  which 
case  they  do  contribute  skill  or  labor.  He  also  criticises  the 
definition  of  the  New  York  code  as  not  specifying  that 
"carrying  on  business"  means  an  honest  business,  since  it 
might  include  a  partnership  between  highwaymen,  and  he 
prefers  Pothier's  definition  because  containing  the  word 
honest.  This,  again,  is  erroneous.  A  partnership  is  no  less 
one  because  illegal  and  therefore  not  enforcible  by  the 
courts. 

The  definition  of  the  Indian  contract  act,  adopted  also  by 
Pollock  (Digest  of  the  Law  of  Partnership)  as  "the  relation 
which  subsists  between  persons  who  have  agreed  to  com- 
bine," etc.,  is  defective  as  including  an  inchoate  partnership 
as  well  as  an  actual  one. 

Should  it  be  determined  in  the  future  that  a  partnership 
is  an  entity  distinct  from  the  persons  composing  it,  my  defi- 
nition should  not  describe  it  as  a  relation  but  as  a  union  or 
body  formed  by  persons  who,  etc. 

The  Institutes  and  Pandects  have  nowhere  given  a  defini- 
tion of  partnership,  but  the  modern  law  upon  the  subject  is 
undoubtedly  based  upon  the  Roman  societas,  which  was 
either  societas  universorum  honorum,  or  communion  of  all 
property;  universormm  quce  ex  qucestu  veniunt,  or  trade 
partnership,  the  usual  kind,  and  which  was  presumed  to  be 
intended  in  the  absence  of  contrary  proof;  negotiation  is 
alicujus,  for  a  particular  transaction;  vectigalis,  for  the 
collection  of  taxes,  or  rei  unius,  the  joint  ownership  of  a 
single  thing. 

§2.  Is  a  contract  relation. —  Partnership  is  a  contract 
relation  and  not  a  status;  for  example,  a  decree  finding  its 

1  5  Ch.  D.  458. 

3 


PARTNERS  AND  PARTNERSHIP  DEFINED.  §  3. 

existence  or  non-existence  binds  the  parties  to  the  case 
only,  and  not  third  persons.^ 

An  agreement  of  partnership,  Hke  any  other  contract, 
must  be  founded  on  a  consideration  either  of  mutual  prom- 
ises or  contributions.  A  mere  promise  by  one  person  that 
another  shall  share  in  the  profits  of  his  enterprises,  where 
the  other  furnishes  no  capital  or  labor,  or  otherwise  pro- 
motes the  common  enterprise,  is  void.^ 

So  where  Reynolds  &  Lee  purported  to  be  a  firm,  but  Lee  was  to 
pay  all  the  losses  and  have  all  the  profits,  it  was  said  that  they  were^ 
not  partners  inter  se,  but  only  such  to  those  who  trusted  them  asa. 
firm.' 

A  sum  is  frequently  paid  for  an  admittance  into  a  firm  or- 
for  a  share  in  a  business  by  an  incoming  partner,  called  the- 
premium.  The  questions  arising  upon  this  subject  are  in- 
volved in  the  right  to  a  return  of  the  premium  in  cases  o£' 
premature  dissolution,  and  belong  to  the  subject  of  account- 
ing. But  any  contribution,  or  promise  to  contribute,  or  act 
which  may  create  a  liability  to  third  persons,  is  sufficient;* 
or  mutual  promises;^  or  subscriptions  to  capital.^  But  the 
inequality  of  the  contributions  goes  only  to  the  quantum  of 
the  consideration,  and  the  courts  cannot  measure  it.^ 

§3.  Not  created  by  implication  of  law. —  Hence,  also,  a 
partnership  is  never  created  between  parties  by  implication 
or  operation  of  law,  apart  from  an  expressed  or  implied  in- 
tention and  agreement  to  constitute  the  relation.  This  doc- 
trine must  not  be  confused  with  holding  persons  liable  as 
partners  by  estoppel,  or,  in  a  few  states,  by  sharing  profits, 
for  these  are  not  true  partnerships,  but  mere  cases  of  liabil- 
ity to  certain  persons. 

Thus,  two  persons  owning  bonds  and  uniting  in  litigation  to  es- 
tablish their  validity,  are  not  made  partners  by  operation  of  law  so 

1  McDonald  v.  Matney,  82  Mo.  358,  ^The  Herkimer,  Stewart's  Adm.  23. 

364.  5  Coleman  v.    Ej^re,  45  N.  Y.  38; 

2 Mitchell  V.  O'Neale,  4  Nev.  504;  Breslin  v.  Brown,  24  Ohio  St.  565; 

Heyhoe  v.  Burge,  9  C.  B.  431.  Belcher  v.  Conner,  1  S.  Ca.  88. 

3  Alabama  Fertilizer  Co.  v.   Rey-  <>  Kimmins  v.  Wilson,  8  W.  Va.  584. 

nolds  &  Lee,  79  Ala.  497.  '  Dale  v.  Hamilton,  5  Hare,  393. 

3 


g  4.  NATURE  AND  FORMATION. 

that  a  purchase  of  other  bonds  by  one  will  inure  to  the  benefit  of 
both.' 

So,  if  a  man,  having  a  wife  living,  marries  a  woman  and  they 
accumulate  property,  and  he  dies  and  the  former  wife  claims  the 
inheritance,  the  second  wife  cannot  claim  the  property  as  surviv- 
ing partner,  for  no  partnership  was  ever  contemplated  between 
them.* 

So  where  sons  worked  for  a  father  without  salary  or  wages,  un- 
der a  sort  of  patriarchal  system,  and  their  business  grew  to  large 
proportions,  but  there  was  no  agreement  between  them,  nor  any- 
thing but  a  mere  expectancy  of  succession,  the  law  cannot  create  a 
partnership  by  implication  Avithout  the  assent  of  all.^ 

So  false  declarations  and  acts  to  get  another  credit  in  order  to 
share  in  the  property  so  obtained  does  not  create  a  partnership. 
As  where  a  father,  in  order  that  his  son  might  get  goods  on  credit 
for  their  joint  benefit,  held  out  to  the  world  that  the  son  would 
receive  his  property,  though  he  would  be  liable,  it  is  not  as  part- 
ner.* 

§  4.  Defective  corporations. —  The  most  important  ap- 
plication of  this  principle  occurs  where  persons  have  at- 
tempted to  form  a  corporation,  but  by  failure  to  comply 
with  the  statutes  or  otherwise  have  never  perfected  a  corpo- 
rate organization  and  thus  entitled  themselves  to  the  im- 
munities of  one,  but  have  nevertheless  proceeded  to  trans- 
act business  and  incur  debts,  or  have  continued  to  act  as  a 
corporation  after  their  charter  has  expired.  The  weight  of 
authority  sustains  the  doctrine  that  the  corporators  are  not 
liable  as  partners  when  their  acts  were  bona  fide  on  the  sup- 
position that  they  were  incorporated  and  were  assuming 
only  the  limited  liability  of  stockholders  and  did  not  intend 
to  be  liable  as  partners.  The  authority  against  this  is,  how- 
ever, very  formidable,  and  is  based  on  general  public  policy 
rather  than  on  any  principle  of  partnership  law. 

The  authorities  holding  that  such  persons  are  not  liable  as  part- 
ners are:  Fay  v.  Noble,  7  Cush.  188,  where  the  organization  was 

1  Wilson  V.  Cobb,  28  N.  J.  Eq.  177.        3  Phillips  v.  Phillips,  49  III  437. 

2  Estate  of  Winters,  1  My  rick  (Cal.)        <  Farr  v.  Wheeler,  20  N.  H.  569. 
Prob.  Rep.  131. 

4 


PARTNERS  AND  PARTNERSHIP  DEFINED.  §  4. 

defective.  Trowbridge  v.  Scudder,  11  Cusli.  83,  where  the  contract 
sued  on  was  ultra  vires.  First  Nat'l  Bank  v.  Almy,  117  Mass.  476, 
where  business  was  transacted  before  the  whole  stock  was  paid  in, 
contrary  to  the  statute;  and  s.  P.  Bank  v.  Hall,  35  Ohio  St.  158. 
Ward  V.  Brighani,  127  Mass.  21,  where  officers  were  elected  who 
transacted  business  before  the  organization  was  completed.  Cen- 
tral City  Sav.  Bk.  v.  Walter,  66  N.  Y.  424  (aflf.  5  Hun,  34),  where, 
after  expiration  of  the  charter,  but  in  ignorance  thereof,  the  busi- 
ness was  continued.  Contra,  Nat'l  Bk.  of  Watertown  v.  Landon, 
45  N.  Y.  410,  where  thej'  continued  business,  knowing  the  charter 
had  expired.  So  in  New  York  Iron  Mine  v.  Negaunee,  39  Mich. 
644,  where  no  meeting  of  stockholders  or  directors  had  been  had 
for  several  years,  and  two  persons  who  made  the  notes  sued  on 
owned  all  the  stock;  and  Merchants'  and  Manuf.  Bank  v.  Stone, 
38  Mich.  779,  where  a  bank  which  had  discounted  paper  of  the 
supposed  corporation  alleged  that  it  was  improperly  organized,  had 
conducted  an  unauthorized  business,  and  that  the  corporate  name 
was  indeterminate.  In  State  v.  How,  1  Mich.  512,  members  of  a 
bank  organized  under  an  unconstitutional  law  Avere  held  not  liable 
for  its  bills  because  they  are  nuda  pacta  and  unlawful.  This,  then, 
is  not  an  authority  on  our  doctrine.  Rowland  v.  Meader  Furniture 
Co.  38  Ohio  St.  269,  held  that  judgment  of  ouster  does  not  make 
members  liable  as  partners  on  the  prior  contracts;  and  in  Bank  v. 
Hall,  35  Ohio  St.  158,  166,  it  was  said  that  non-compliance  with 
the  statute  in  organizing,  or  exceeding  the  charter  powers,  does 
create  the  liability  as  partners;  and  Medill  v.  Collier,  16  Ohio  St. 
599,  stockholders  who  did  not  participate  in  acts  not  merely  ultra 
vires  but  positively  forbidden  by  statute  are  not  liable  as  partners. 
McClinch  V.  Sturgis,  72  Me.  288,  on  the  ground  that  the  omitted 
acts  are  directory,  and  if  the  state  raises  no  objection  no  one  else 
can.  Stout  v.  Zulick  (N.  J.),  7  Atl.  Rep.  362;  and  so,  also,  Tarbell 
V.  Page,  24  111.  46,  that  the  state  alone  can  complain  of  a  failure  to 
file  the  certificate  of  incorporation  with  the  secretary  of  state,  and 
an  employee  cannot  sue  the  stockholders  for  his  salary.  In  Hum- 
phreys V.  Mooney,  5  Colorado,  282,  the  defect  was  failure  to  file  the 
certificate  with  the  secretary  of  state;  and  so  in  Harrod  v.  Hamer, 
32  Wis.  162,  on  the  ground  that  this  was  not  a  condition  precedent. 
Gartside  Coal  Co.  v.  Maxwell,  22  Fed.  Rep.  197,  where  the  defect  is 
not  stated,  but  it  is  held  that  if  the  acts  are  bona  fide  and  without 
the  knowledge  of  the  defect  in  organization,  the  parties  having 

5 


§  5.  NATURE  AND  FORMATION. 

done  business  for  several  years  supposing  they  were  incorporated, 
are  not  liable  as  partners  to  one  who  dealt  with  them  as  a  corpora- 
tion. In  Planters'  and  Miners'  Bank  v.  Padgett,  69  Ga.  159,  the 
corporation  was  created  by  a  court  having  no  authority  to  do  so, 
but  a  creditor  who  had  contracted  with  it  as  such,  both  parties  be- 
lieving the  corporation  to  exist,  cannot  sue  the  members  as  part- 
ners. Stafford  Bank  v.  Palmer,  47  Conn.  443,  that  stockholders 
who  did  not  participate  in  a  defective  organization  cannot  be  held 
as  partners;  and  see  dictum  in  Blanchard  v.  Kaull,  44  Cal.  440.  A 
judgment  against  the  corporation  estops  the  creditor  from  claim- 
ing the  stockholders  to  be  partners.  Pochelu  v.  Kemper,  14  La. 
An.  308;  Cresswell  v.  Oberly,  17  III.  App.  281. 

§  5.  Contrary  cases. —  On  the  other  hand,  the  following  author- 
ities distinctly  hold  that  the  associates  are  liable  as  partners:  Jes- 
sup  V.  Carnegi,  12  J.  &  Sp.  260;  80  N.  Y.  441,  that  neither  the 
intention  of  the  parties  nor  the  belief  of  others  that  they  are  deal- 
ing with  a  corporation  makes  any  difference;  they  are  liable  as 
partners  if  they  undertake  to  act  as  a  corporation  without  legal  or- 
ganization. In  re  Mendenhall,  9  Baukr.  Reg.  497,  and  National 
Bank  of  Watertown  v.  Landon,  45  N.  Y.  410  {^^  Barb.  189),  where 
stockholders  continued  business  after  the  expiration  of  the  charter, 
and  each  was  held  liable  m  solldo  for  the  acts  of  their  managing 
agent.  Bigelow  v.  Gregory,  73  111.  197,  on  the  ground  that  publi- 
cation and  filing  the  certificate  was  a  condition  precedent  under  the 
Wisconsin  statute.  Coleman  v.  Coleman,  78  Ind.  344,  a  similar 
omission  was  held  to  make  not  only  directors,  but  also  subscribers, 
liable  as  partners.  Kaiser  v.  Lawrence  Sav,  Bank,  56  Iowa,  104, 
where  the  defect  was  the  same.  Abbott  v.  Omaha  Smelting  Co.  4 
Neb.  416,  the  same.  Also  the  following  cases:  Garnett  v.  Rich- 
ardson, 35  Ark.  144,  where  the  certificate  was  not  filed,  and  the 
court  say  the  parties  are  liable  as  partners;  yet  from  the  statement 
of  facts  it  would  seem  that  the  goods  sued  were  bought  in  the  part- 
nership name.  Martin  v.  Fewell,  79  Mo.  401,  announces  the  doc- 
trine broadly,  and  says  it  results  from  Richardson  v.  Pitts,  71  Mo. 
128,  but  the  defendants  seem  to  have  been  aware  that  the  business 
was  being  done  before  the  organization  was  completed,  the  court 
saying  that,  if  not  liable  as  partners,  they  might  run  on  indefinitely 
with  the  privileges  of  a  corporation.  But  in  Hurt  v.  Salisbury,  55 
Mo.  310,  the  doctrine  was  squarely  announced.  In  Field  v.  Cooks, 
16  La.  An.  153,  the  certificate  of  the  district  judge  was  omitted; 

6 


PARTNERS  AND  PARTNERSHIP  DEFINED.  §  6. 

held  liable  as  partners.  So  in  Chaffe  v.  Ludeling,  27  La.  An.  607, 
there  was  no  pretense  of  any  charter,  the  parties  having  bonglit 
out  a  railroad  corporation  and  then  contracted  in  its  corporate 
name.  In  Vredenburg  v.  Behan,  33  La.  An.  627,  a  rifle  club  was 
organized  under  a  law  for  incorporating  literary  and  scientific  as- 
sociations, and  the  officers  were  lield  liable  in  tort  for  injury  done 
by  a  bear  kept  on  the  premises.  See,  also,  the  dissenting  opinion 
of  Morton,  J.,  in  Merchants'  &  Manufacturers'  Bank  v.  Stone,  38 
Mich.  770,  as  to  corporation  for  unauthorized  purpose.  In  Harris  v. 
McGregor,  29  Cal.  124,  the  defendants  were  sued  personally  for  in- 
juries from  their  diversion  of  a  water-course,  their  certificate  of  cor- 
poration being  defective;  but  this  is  inconsistent  with  the  dictum 
in  the  later  case  cited  in  §  5.  In  Shorb  v.  Beaudry,  56  Cal.  4:-iQ; 
Fuller  V.  Rowe,  57  N.  Y.  193  (rev.  s.  c.  59  Barb.  341);  Cambridge 
Water  Works  v.  Somerville  Dyeing,  etc.  Co.  14  Gray,  193;  Hol- 
brook  V.  St.  Paul  F.  &  M.  Ins.  Co.  25  Minn.  229;  and  London 
Assur.  Co.  V.  Drennen,  116  U.  S.  461,  the  point  was  raised  but  not 
decided.  In  Flagg  v.  Stowe,  85  111.  164,  persons  agreeing  to  be- 
come incorporated  and  to  furnish  respectively  a  factory,  machinery 
and  money,  not  having,  by  failure  to  comply  with  the  statute,  be- 
come incorporated,  are  so  far  partners  infer  se,  that  an  accounting 
and  sharing  of  losses  can  be  had,  including  a  reasonable  rent  for 
the  property.     And  see  §  6. 

§  6. inteiitioual  yiolation  of  cliarter  powers. —  If  the 

parties,  even  though  organized  as  a  corporation,  knowingly 
conduct  business  wholly  outside  of  the  charter  powers,  or 
make  use  of  the  statutory  organization  to  act  in  fraud  of 
the  laws  of  the  state  for  the  sake  of  profit,  their  relation  is 
that  of  partners. 

Thus,  where  a  statute  permits  the  incorporation  of  savings  so- 
cieties upon  a  mutual  plan  only,  the  depositors  being  members  and 
sharing  the  earnings,  and  the  corporators  conduct  the  business  as 
a  trading  and  not  mutual  concern,  doing  a  general  banking  busi- 
ness for  their  own  profit,  here,  there  being  not  even  an  attempted 
or  imperfect  execution  of  their  powers,  but  a  total  diversion  of  it, 
they  are  liable  as  partners  to  depositors.^ 

Hill  V.  Beach,  12  N.  J.  Eq.  31,  holds,  where  persons  go  to  an- 
other state  to  be  incorporated  for  the  purpose  of  doing  business  in 

1  Ridenour  v.  Mayo,  40  Oh.  "St.  9. 


§  8.  NATURE  AND  FORMATION. 

tlie  state  where  they  live,  presumably  to  escape  liability,  they  com- 
mit a  fraud  on  the  laws  of  the  latter  state  and  will  be  treated  as 
partners.  Contra,  that  such  act  is  not  a  fraud,  Bank  v.  Hall,  35 
Oh.  St.  158. 

The  parties  under  an  intended  but  fatally  defective  incorporation 
proceedings  have  the  rights  of  partners  in  the  property  of  the  con- 
cern;'  but  not  if  not  so  intended.* 

§  7.  Participants  in  tlie  illegal  acts. —  But  even  where 
innocent  stockholders  of  an  imperfect  corporate  organization 
are  not  held  personally  liable,  it  may  be  that  officers  or  par- 
ticipating stockholders  who  contract  with  knowledge  of  the 
want  of  the  omission  of  statutory  steps,  or  engage  in  an  un- 
authorized business,  would  be  liable.* 

But  there  is  no  liabiUty  to  a  participant,  for  example,  to  the 
solicitor  who  helped  to  organize  knowing  there  were  more  than  the 
statutory  number  of  meuibers;^  nor  on  contracts  before  the  defend- 
ant became  a  member.  Thus,  where  one  Sweet,  acting  as  president 
of  a  supposed  corporation,  employed  Fuller  as  superintendent,  at  a 
salary,  and  afterwards  Rowe,  supposing  the  company  was  a  legal 
corporation,  joined  it  and  was  elected  president,  and  notified  Ful- 
ler to  report  to  him,  he  is  not  liable  with  Sweet  and  others  for  the 
salary." 

§8.  firm  Tbecoming  incorporated. —  Where  a  firm 

actually  engaged  in  business  becomes  incorporated,  but  con- 
tinues to  do  all  its  business  in  the  partnership  name,  they 
are  liable  as  partners  on  contracts  so  made.®    So  where  an 

1  Conner  v.    Abbott,  35  Ark.    365;  Coal   Co.    v.  Maxwell,  22   Fed.  Rep. 

Whipple   V.    Parker,    29  Mich.    3G9 ;  197.     Tiiat  the  liability  is  in  tort  for 

and  see  Holbrooku.  St.  Paul  F.  &  M.  acting  as  agents  without  authority, 

Ins.  Co.  25   Minn.  229,  and   Shorb  v.  and  cannot  be  iu  contract,  since  they 

Beaudry,     56    Cal.     446;    Flagg    v.  did  not  promise  as  partners,  Trow- 

Stowe,  85  111.  164.  bridge  v.  Scudder,  11  Cush.  83.    See, 

^  London  Assur.    Co.  v.  Drennen,  also,  Sullivan  v.  Sullivan,  20  S.  Ca. 

116  U.  S.  461.  79. 

SMedill  V.  Collier,  16  Oh.  St.  599;  iBe   South  Wales  Atl.   Steamsh. 

Bank  v.  Hall,  35  Oh.  St.  158,  166 ;  Staf-  Co.  2  Ch.  D.  763. 

ford  Bank  v.  Palmer,  47   Conu.  443,  5  Fuller  v.  Rowe,  57  N.  Y.  23  (rev. 

448-9 ;  National  Bank  of  Watertown  59  Barb.  344). 

V.  Landon,  45   N.  Y.  410.    See,  also,  6  Bank  v.  Smith,  26  W.  Va.  541,  553, 

Blanchard    v.   KauU,    44  Cal.    440,  the  court  saying  the  incorporation 

and  language  of  court  in  Gartside  was  a  transparent  fraud.     See,  also, 

8 


PARTNERS  AND  PARTNERSHIP  DEFINED.  §  10. 

existing  partnership  attempts  to  become  incorporated,  but 
the  proceedings  are  irregular,  they  are  still  a  partnership. 
So  on  contracts  made  before  they  attempt  to  become  a  cor- 
poration.^ So  where  stockholders  represent  themselves  as 
personally  liable  for  debts; ^  and  no  doubt  notice  of  dissolu- 
tion of  the  partnership  is  as  necessary  in  the  case  of  con- 
version of  a  firm  into  a  corporation  as  in  any  other  case, 
for  the  change  of  name  might  be  notice  only  on  written 
contracts;  and  it  would  be  wise  to  have  the  corporate  name 
distinctly  different  from  the  partnership  name,  lest  the  part- 
ners be  held  to  a  personal  liability  in  solido,  as  partners  by 
a  holding  out. 

A  corporation  formed  out  of  a  firm  without  difference  of 
membership  is  not  liable  for  the  debts  of  the  partnership.* 

KINDS   OF  PARTNERS   AND  PARTNERSHIPS. 

Leaving  out  of  view  the  classes  of  partners  in  limited 
partnerships,  wdiich  are  the  general  and  special  partners, 
members  of  ordinary  partnerships  may  be  divided  generally 
into  (1)  Active  and  ostensible;  (2)  Secret  or  dormant;  and 
(3)  Nominal. 

§  9.  Active  and  ostensiMe  partners. —  An  ostensible  part- 
ner is  one  who  is  known  and  declared  to  be  such  whether 
his  name  be  in  the  firm  style  or  not;  for  the  firm  name  may 
be  a  purely  fanciful  one.  He  has  also  occasionally  been 
called  a  public  partner. 

An  active  partner  is  generally  the  same  as  an  ostensible 
one,  but  not  necessarily  so;  for  a  member  whose  connection 
with  the  firm  is  intentionally  concealed  ma}''  be  neverthe- 
less an  active  partner,  though  not  an  ostensible  one. 

§  10.  Secret  or  dormant  partner. —  These  terms  are  gen- 
erally used  as  synonymous.  A  dormant  partner  must  be  a 
secret  one  or  he  ceases  to  be  dormant,  but  many  dormant 

Garuett  v.  Richardson,  35  Ark.  144;  SReid  v.  Eatanton  Mfg.  Co.  40  Ga. 

Witmer  v.  Schlatter,  2  Rawle,  359.  98. 

1  Whipple  u.  Parker,  29  Mich.  369;  SMcLellan  v.  Detroit  File  Works, 

Haslett    V.    Wotherspoon,    2    Rich.  56  Mich.  579. 
(S.  Ca.)  Eq.  395. 


§  12.  NATURE  AND  FORMATION. 

partners  are  not  only  secret,  but  by  tbe  partnership  articles 
are  excluded  from  participating  in  the  management  of  the 
business;  while  others  do  not  participate,  and  yet  are  not  by 
contract  excluded  from  exercising  the  usual  powers  of  a 
partner  and  from  terminating  their  condition  of  dormancy 
at  will;  and  yet  other  secret  partners  may  be  active  partici- 
pants in  the  conduct  of  the  concern.  Partnership  nomenclat- 
ure does  not  furnish  any  terms  to  distinguish  between  these 
classes  of  dormant  or  secret  partners.  Even  the  word  silent, 
which  is  apt  to  be  confined  to  those  who  are  both  secret  and 
inactive,  has  no  such  generally  recognized  limitation  of 
meaning. 

§  11.  Nominal  partner.  —  A  nominal  partner  literally 
would  be  one  whose  name  is  openly  used  as  one  of  the  part- 
ners whether  he  be  an  active  partner  or  not;  but  the  term  is 
always  understood  to  mean  a  person  who  is  not  a  partner  at 
all,  but  allows  the  use  of  his  name  in  the  firm,  generally  to 
give  it  additional  credit  or  to  attract  custom,  thus  incurring 
all  the  liabilities  while  deriving  none  of  the  benefits  of  the 
association.  He  is  also  called  a  partner  by  holding  out  or  by 
estoppel,  for  he  is  a  partner  only  to  those  who  trust  the  firm 
wholly  or  in  part  on  the  faith  of  his  appearance  as  a  mem- 
ber of  it.  This  subject  will  be  treated  more  fully  under 
Holding  Out. 

§  1 2.  Kinds  of  partnerships. —  Partnerships  may  be  divided 
into  the  ordinary  partnership,  the  limited  partnership  and 
the  joint  stock  company. 

The  limited  partnership  is  one  formed  under  statutes  per- 
mitting a  limited  liability  on  the  part  of  some  of  the  mem- 
bers, which  the  common  law  utterly  discountenances,  and 
which  have,  therefore,  been  treated  in  this  country  with 
some  unnecessary  degree  of  strictness  by  the  courts.  Such 
members  hazard  only  the  amount  of  capital  they  have  em- 
barked and  incur  no  further  liability.  They  have  formed 
the  subject  of  a  separate  treatise  by  the  author.^ 

1  The  Law  of  Limited  Partnership,  by  Clement  Bates,  Boston,  1886,  Little, 
Brown  &  Co. 

10 


PARTNERS  AND  PARTNERSHIP  DEFINED.  §  13. 

The  ordinary  partnership  includes  the  joint  stock  com- 
pany as  a  pecuhar  class,  owing  to  the  nature  of  the  partners' 
shares  and  the  mode  of  government  of  the  association. 

Ordinary  partnerships  may  be  divided  into  particular, 
general  and  universal.  These  divisions  are  of  no  great  im- 
portance and  may  be  multiplied  according  to  the  fancy  of 
the  reader.  Another  is  made  between  trading  and  non- 
trading  partnerships,  or  those  in  which  a  primary  element 
is  buying  and  selling,  and  those  in  which  it  is  not,  the  latter 
class  including  such  partnerships  as  those  for  farming,  min- 
ing and  practicing  in  the  professions.  This  division  is  of 
very  great  importance  in  determining  the  implied  powers 
of  individual  partners,  and  will  be  treated  of  with  that  sub- 
ject. 

A  PARTICULAR  PARTNERSHIP  is  ouo  where  the  parties  have 
united  to  share  the  benefit  of  a  single  individual  transaction 
or  enterprise. 

A  GENERAL  PARTNERSHIP  is  One  where  they  have  united 
for  the  general  purposes  of  some  kind  of  business.  All  part- 
nershij)s  may  be  said  to  be  more  or  less  limited,^  and  vice 
versa,  those  restricted  to  one  venture  may  have  as  to  it  the 
incidents  of  a  general  partnership;  ^  but  this  class  represents 
the  great  majority  of  associations,  whether  for  the  prosecu- 
tion of  commercial,  mechanical,  manufacturing  or  profes- 
sional avocations,  and  whether  for  a  fixed  period  of  time  or 
at  will. 

§  13.  TTiiiversal  partnership. —  A  universal  partnership  is 
one  in  which  all  property  ov/ned  by  the  parties  is  contrib- 
uted, and  all  profits,  however  made,  are  for  joint  benefit. 
Some  of  the  cases  I  have  placed  under  this  head  can  hardly 
be  considered  partnerships  at  all,  but  are  rather  commu- 
nistic arrangements  or  tenancies  in  common. 

The  civil  law  recognized  two  kinds  of  universal  partnership,  the 
societas  universonim  bonorum,  comprising  a  union  of  all  property, 
real  or  personal,  present  or  to  be  acquired,  even  by  gift  or  inhent- 

1  Livingston  v.  Roosevelt,  4  Johns.        2  Horsey    v.    Heath,    5    Oh.    353, 
251,  277  (4  Am.  Dec.  273) ;  Walden  v.     356. 
Sherburne,  15  id.  409,  422. 

11 


§  13.  NATURE  AND  FORMATION. 

ance;  aud  the  sociefas  wiiversorum  quce  ex  qucestu  veniunt,  differing 
from  the  former  iu  that  real  estate  aud  subsequent  acquisitions,  by 
gift  or  descent,  were  not  included,  nor  were  past  debts  a  charge. 
And  in  Louisiana  the  universal  partnerships  are  recognized  by  the 
Code,  §§  2800-2805;  but  if  part  of  the  property  of  the  partners  is 
not  included  it  is  not  a  universal  partnership/ 

In  the  other  American  states  partnerships  have  occasionally  oc- 
curred approximating  closely  to  aimlversal  partnership.  Such  was 
Lyman  v.  Lyman,  2  Paine,  C.  C.  11,  where  two  brothers  for  some 
thirty  years  included  all  their  property  and  engaged  in  nearly  every 
kind  of  enterprise,  and  it  was  held  (p.  28)  that  even  legacies  to 
each  partner,  aud  to  the  Avife  of  one,  were  included.  Gaselys  v. 
Separatists'  Soc.  13  Oh.  St.  Ill,  if  a  partnership  at  all  was  a 
universal  one,  there  was  a  renouncing  of  separate  interests  and  a 
perpetual  devotion  of  all  property  to  a  religious  society,  the  mem- 
bers participating  in  the  use  of  the  fund  so  long  only  as  they  con- 
tinued members.^ 

In  Gray  v.  Palmer,  9  Cal.  616,  one  of  two  persons  contributed 
to  the  joint  fund  all  he  possessed,  and  the  other  all  he  might  be- 
come possessed  of  for  two  years  for  the  purpose  of  accumulation, 
debts  to  be  paid  from  the  joint  fund.  The  court  said  that  there 
Avas  nothing  impracticable  or  against  morality  or  public  policy  in 
a  universal  partnership. 

Rice  V.  Barnard,  20  Vt.  479  (50  Am.  Dec.  54),  was  a  partnership 
so  universal  as  to  include  everything  except  furniture  and  wearing 
apparel.  The  court  said  they  would  regard  it  rather  as  a  tenancy 
in  common  than  a  partnership,  and  that  partnership  creditors  could 
not  have  a  priority  over  the  separate  creditors  of  each  partner  on 
distribution. 

Quine  V.  Quine,  9  Sm.  &  Mar.  155,  was  a  planting  partnership 
between  a  person  and  his  sister-in-law,  which  included  all  prop- 
erty, real  or  personal,  bought  by  either,  whether  in  their  individual 
or  joint  names,  holding,  however,  that  a  right  of  survivorship  can- 
not be  proved  by  mere  conversations.' 

iMurrell  v.   Murrcll,  33  La.    An.  Williite,  3  Dana,  170.     Of  the  Har- 

1233.  raony  Society.     Baker  v.  Nachtrieb, 

2  See  flirt lu^r  as  to  this  society  Goe-  19  How.    126;    Schriber  v.  Rapp,  5 

sele  V.  Biin^ler,  14  How.  589,  aff'g  5  Watts,  351. 

!McLean,   223.     So  of  the  Shakers.        ^s.  P.  Houston  v.  Stanton,  11  Ala, 

Waile  V.  Merrill,  4  Me.  102;  Gass  v.  413. 

12 


PARTNERS  AND  PARTNERSHIP  DEFINED.  §  14. 

But  the  court  will  not  liold  that  a  universal  partnership  is  de- 
signed unless  the  intention  is  very  clearly  expressed.' 

There  are  also  certain  general  partnerships  differing  from  the 
foregoing  in  that  all  property  is  not  contributed,  but  separate 
ownership  remains,  except  of  the  capital  contributed,  but  the 
scope  of  the  partnership  is  to  trade  in  anything  and  everything  in 
which  the  parties  can  make  money." 

§  14.  Mining  partnerships  also,  in  many  respects,  form  a 
class  by  themselves,  being  a  cross  between  tenancies  in  com- 
mon and  partnerships  proper.  Their  peculiarities,  of  which 
the  chief  one  is  the  absence  of  the  delectus  persoJiarum, 
and  hence,  that  death  or  transfer  of  a  share  does  not  dis- 
solve them,  will  be  incidentally  noticed  as  we  progress. 

1  Gray  v.  Palmer,  9  Cal.  616 ;  Mitch-  Turnpike  Co.  v.  Gulick,  16  N.  J.  L. 
ell  r.  O'Neale,  4  Nev.  504,  514.  161;    Goldsmith  v.    Sachs,    17  Fed. 

2  Such   were  Catlin  v.    Gilders,   3  Rep.  726 ;  8  Sawy.  110. 
Ala.    536;    Princeton   &    Kingston 

13 


CHAPTER  11. 

TESTS  OF  A  PARTNERSHIP. 

§  15.  Inter  se  and  as  to  third  persons. —  The  very  great 
importance  of  this,  the  most  perplexed  and  difficult  part  of 
partnership  law,  the  ascertainment  of  what  constitutes  a 
partnership,  and  in  connection  therewith  the  examination 
of  the  influence  which  the  English  case  of  Cox  v.  Hickman 
is  having  upon  our  jurisprudence,  renders  necessary  a  some- 
what extended  summary  of  the  modern  decisions. 

As  the  law  existed  up  to  less  than  thirty  years  ago,  it  was 
necessary  to  make  a  difference  between  a  true  partnership 
and  partnerships  as  to  third  persons.  Persons  having  such 
interests  in  a  partnership  as  to  be  entitled  to  a  share  in  the 
profits  were,  with  certain  exceptions,  as  where  a  share  of 
profits  was  the  measure  of  a  compensation,  liable  to  cred- 
itors as  if  actual  partners,  on  the  assumption  tliat  they  re- 
ceived part  of  the  fund  upon  which  creditors  depended  for 
payment,  and  this  whether  such  person  intended  to  be  a 
l^artner  or  not  or  knew  that  he  incurred  a  liability. 

The  injustice  of  this  doctrine  of  partnership  as  to  third  persons 
has  been  more  or  less  deplored  by  text-writers.  Moreover  the 
illogical  and  untruthful  foundation  upon  which  the  doctrine  rests 
is  now  pretty  well  understood.  Persons  held  liable  as  partners  to 
third  persons  did  not  take  part  of  the  fund  upon  which  creditors 
relied  any  more  than  did  a  salaried  agent,  and  in  fact  less  so;  for 
when  a  partnership  was  unable  to  pay  its  debts,  it  was  because  there 
were  no  profits,  and  in  that  case  such  person  took  nothing;  whereas, 
had  his  compensation  been  definite,  the  fund  would  have  been  dimin- 
ished. 

But  the  doctrine  of  partnership  as  to  third  persons  is  now  ex- 
ploded in  England,  and  by  all  the  later  American  authorities,  and 
nothing  is  left  of  it  except  in  cases  of  partnership  by  estoppel,  that  is 
by  holding  out.  It  is  still  true  that  in  many  American  states, 
where  the  only  decisions  are  their  earlier  ones,  the   law  is  not  yet 

14 


TESTS  OF  A  PARTNERSHIP.  g  16. 

annonncecl  to  have  reacbecl  tlie  modern  point;  for  in  all  the  Ameri- 
can states  the  early  decisions,  Avhile  not  going  to  the  length  of  the 
older  English  law,  were,  of  course,  deep  in  its  shadow,  merely  in- 
creasing the  exceptions  and  somewhat  profiting  by  the  light  of 
growing  modern  criticism.  This  subject  will  appear  more  defi- 
nitely as  we  proceed.  It  is  true  that  tbe  later  decisions,  English 
and  American,  do  not  generally  profess  to  overrule  the  former  ones; 
nevertheless  the  starting  point  or  basis  of  reasoning  is  quite  differ- 
ent, and  is  no  longer  participation  in  profits,  independent  of  inten- 
tion, but  is  now  to  ascertain  the  intention  of  the  parties,  to 
determine  which  a  sharing  of  profits  is  but  a. factor  in  the  evidence 
and  not  conclusive. 

It  is  to  be  remembered  that  persons  who  are  partners  iyiter  se  are 
always  liable  as  partners  to  third  persons,  and  that  persons  who 
are  found  not  to  be  partners  as  to  third  persons  cannot  be  partners 
inter  se;  hence,  in  determining  what  is  a  true  partnership,  author- 
ities as  to  what  does  not  constitute  persons  partners  inter  se  are 
applicable. 

§  16.  Earlier  English  law. —  The  rule  so  long  in  vogue,  that 
a  sharing  of  profits  made  the  sharer  liable  as  a  partner  to  third 
persons,  was  first  announced  in  Grace  v.  Smith,  2  W.  Bl.  998  (1775). 
There  Smith  &  Robinson  dissolved  partnership,  duly  advertising 
the  fact,  on  terms  by  which  Robinson  was  to  take  the  business  and 
assume  the  debts  and  pay  Smith  back  his  original  capital  and 
£1,000  for  profits,  and  Smith  was  to  let  £4,000  remain  in  the  busi- 
ness for  seven  years  at  five  per  cent.  In  an  action  by  a  creditor, 
charging  Smith  as  a  secret  partner,  De  Grey,  J.,  said:  "Every  man 
who  has  a  share  of  the  profits  of  a  trade  ought  also  to  bear  his  share 
of  the  loss.  If  any  one  takes  part  of  the  profit,  he  takes  a  part  of 
the  fund  which  the  creditor  relies  on  for  payment."  ..."  I 
think  the  true  criterion  is  to  inquire  whether  Smith  agreed  to  share 
the  profits  of  the  trade  with  Robinson,  or  whether  he  only  relied  on 
those  profits  as  a  fund  for  payment."  The  jury  found  the  loan  was 
on  general  personal  security  only,  found  for  Smith,  and  a  new  trial 
was  refused.  Hence  the  case  was  rightly  decided,  but  these  state- 
ments of  law  have  had  a  wide  influence. 

In  an  earlier  similar  case,  Bloxham  v.  Pell,  cited  in  2  W.  Bl.  999, 
Lord  Mansfield  had,  on  facts  similar  to  those  in  Grace  v.  Smith, 
ruled  that  the  arrangement  was  a  device  to  obtain  more  than  legal 

15 


§  16.  NATURE  AND  FORMATION. 

interest,  and  lieiice  was  either  a  crime  or  a  partnership,  and  sus- 
tained it  as  being  the  latter.' 

Waugh  V.  Carver,  2  H.  Bl.  235  (1793);  1  Smith's  Lead.  Cas.  968. 
Carver  &  Son,  ship  agents  at  one  place,  and  Giesler,  a  ship  agent  at 
another  place,  agreed  to  throw  business  into  each  other's  hands  and 
divide  commissions  and  profits,  neither  to  be  affected  by  the  other's 
losses  or  liable  for  his  acts.  Eyre,  L.  C.  J.,  said  that  it  was  plain 
the  parties  were  not  and  never  meant  to  be  partners,  but  as  they 
took  part  of  the  fund  on  which  creditors  rely,  they  were  liable  as 
parties  under  Grace  v.  Smith. 

This  case  was  followed  in  1821  by  Cheap  v.  Cramond,  4  B.  &  Aid. 
663,  where  merchants  divided  profits  on  business  recommended  or 
influenced  b}^  one  to  the  other,  and  were  in  consequence  held  to  be 
partners  as  to  third  persons.* 

But  a  share  of  gross  returns  in  lieu  of  compensation  was  early 
held  not  to  constitute  a  liability  as  partners.^  It  had  previously 
been  decided  that  sharing  gross  receipts  did  not  create  a  partner' 
ship  inter  se.* 

Then  a  distinction  was  made  between  an  agreement  to  receive  as 
compensation  a  part  of  the  profits  and  an  agreement  to  receive  a 
sum  equal  to  or  in  proportion  to  a  part  of  the  profits,  the  latter  not 
constituting  a  partnership." 

1  This  same  kind  of  reasoning  was  ^Wilkinson  v.  Frasier,  4  Esp.  183, 
subsequently  adopted  in  Gilpin  v.  of  seamen  sharing  the  oil  of  a  whal- 
Enderbey,  5  B.  &  Aid.  954,  in  which     ing  voyage  as  wages. 

the  question  was  of  a  partnership  in-  ^  Ex  jjcirte  Hamper,   17  Ves.   403, 

terse;  Fereday  v.  Ilordern,  Jac.  144;  412;  Ex  x>^^'te  Langdale,  18  id.  300; 

and  see  Jestons  v.  Brooke,  Cowp.  793.  Ex  parte  Watson,  19  id.  459,  401 ;  Ex 

2  And  by  Heyhoe  v.  Burge,  9  C.  B.  par^e  Rowlandson,  1  Rose,  89;  Brock- 
431.  See,  also,  Hesketh  v.  Blanchard,  way  v.  Burnap,  16  Barb.  309;  Pierson 
4  East,  144 ;  Smith  v.  Watson,  2  B.  &  v.  Steinmyer,  4  Ricli.  L.  309 ;  Loomis 
C.  401,  of  a  broker  paid  by  a  share  of  v.  Marshall,  12  Conn.  69;  Turner  v. 
profits  in  lieu  of  commission;  Barry  Bissell,  14  Pick.  193;  Miller  v.  Bart- 
V.  Neshara,  3  C.  B.  641,  a  seller  of  a  let,  15  S.  &  R.  137;  Lord  v.  Proctor, 
business  guarantying  certain  profits  7  Phila.  630;  Irwin  v.  Bid  well,  72  Pa. 
to  the  buyer,  but  to  have  all  above  St.  344.  The  fullest  examination  of 
that  himself  ;£'a;par/eGellar,  1  Rose,  the  old  cases  will  be  found  in  East- 
297.     For  the  modern  law,  see  §  00.  man  v.  Clark,    53  N.  H.  276.  A  very 

3  Dry  V.  Boswell,  1  Camp.  329,  of  a  neat  resuvii  of  their  effect  is  given 
boatman  receiving  half  the  boat's  by  Sir  N.  Lindley,  Partnership,  voL 
gross  earnings  in  lieu  of  wages.  1,  p.  34  et  seq. 

16 


TESTS  OF  A  PARTNERSHIP.  §  17. 

§17.  Intention. —  To  determine  whether  the  relation  be- 
tween persons  constitutes  a  partnership  their  intention  in 
forming  it  governs.  When  the  facts  are  given,  this  question 
is  one  of  law.  The  fact  that  the  contract  may  be  denominated 
by  the  parties  a  partnership,  or  that  they  declare  in  it  that 
they  do  not  design  becoming  partners,  is  controlled  by  the 
nature  of  the  contract.  If  it  constitutes  a  partnership  it  is 
one;  and  if  not,  not,  independent  of  the  language  of  the 
parties. 

The  declarations  of  the  parties  themselves  upon  the  sub- 
ject, if  not  inconsistent  with  the  other  terms  of  the  contract, 
will  control.  If  they  have  agreed  not  to  be  partners  they 
are  not,  whatever  may  be  their  responsibilities  otherwise.^ 

The  word  partnership  is  not  necessary  to  be  used  to  con- 
stitute a  partnership,  nor  are  the  words  manager,  servant, 
agent,  superintendent,  and  the  like,  necessary  to  show  that 
an  employment  was  intended.^ 

The  intention  of  the  parties  will  be  determined  from  the 
effect  of  the  whole  contract,  regardless  of  special  expressions. 
And  if  the  actual  relation  which  the  parties  have  assumed 
towards  each  other,  and  the  rights  and  obligations  which 
have  been  created  by  them,  are  those  of  partners,  the  act- 
ual intention  of  the  parties  or  their  declared  purpose  can- 
not suspend  the  consequences.^    And  so  if  the  parties  have 

1  Pollard  V.  Stanton,    7   Ala.   761;    see  Couch  r.  Woodruff,  63  Ala.  4665. 
Marks    v.  Stein,    11   La.  Ann.   509;    Tayloe  u  Bush,  75  id.  433. 

Kerru.  Potter,  6  Gill,  401;  Redding-        spooley  v.   Driver,  5  Ch.  D.   458; 

ton  V.   Lanahan,  59  Md.  429;  Gill  u.  Ex  parte  Delhasse,  7  id.  511;  Moore 

Kuhn,  6  S.  &  R.  383.  v.  Davis,  11  id.  261 ;  Cooley  v.  Broad, 

2  See,  for  example,  Van  Kuren  v.  29  La.  Ann.  345 ;  Mulhall  v.  Cheat- 
Trenton  Locomotive  &  Mach.  Mfg.  ham,  1  Mo.  App.  476;  Beecher  v. 
Co.  13  N.  J.  Eq.  302;  Bloomfield  v.  Bush,  45  Midi.  188,  194  (40  Am.  Rep. 
Buchanan,  13  Oregon,  108;  Ryder  v.  465);  Manhattan  Brass  &  Mfg.  Co.  v. 
Wilcox,  103  Mass.  24,  27;  Greenham  Sears,  45  N.  Y.,  797  (0  Am.  Rep. 
V.  Gray,  4  Irish  Com.  L.  501.  The  177);  rev.  s.  C.  1  Sweeny,  426;  Coth- 
contract  where  third  persons'  claims  ran  v.  Marmaduke,  60  Tex.  370,  372  ; 
are  not  in  question  will  be  liberally  Stevens  v.  Gainesville  Nat'l  Bank,  62 
construed  in  reference  to  the  actual  Tex.  499,  503 ;  Duryea  v.  Whitcomb, 
understanding  of  the  parties  and  the  31  Vt.  o9.j;  Rosentield  v.  Haight,  53 
purposes  they  had  in  view.     Hitch-  Wis.  260. 

ings  V.  Ellis,  12  Gray,  449,  452 ;  and 
Vol.  1  —  2  17 


g  18.  NATURE  AND  FORMATION. 

used  the  word  partnership  in  their  contract  and  called  them- 
selves partners,  this  will  not  make  them  such  if  the  contract 
is  not  consistent  with  such  relation.^ 

§  18.  Mutual  agency  as  a  test  of  iutentioii. —  It  is  impos- 
sible to  lay  down  any  absolute  rule  to  .-ascertain  the  presence 
of  an  intention  to  create  a  partnership.  The  earliest  of  the 
modern  English  cases,  Cox  v.  Hickman,  sugf^ests  agency  as 
a  test;  that  is,  if  a  person  is  connected  with  a  firm  as  a 
principal,  as  one  trading  on  his  own  behalf  as  well  as  in  be- 
half of  the  others,  he  is  a  partner.  And  the  same  idea  may 
be  otherwise  expressed;  thus,  if  the  party  is  a  constituent 
part  of  the  conventional  being  created  by  the  parties  in 
forming  a  partnership,  he  is  a  partner.^ 

In  later  cases  this  use  of  the  word  agency  has  been  criticised; 
thus,  Jessel,  M.  R.,  in  Pooley  v.  Driver,^  regrets  it  as  not  helping 
in  the  slightest  degree,  because  only  stating  in  other  words  that  he 
must  be  a  partner;  and  Baron  Cleasby,  in  Holme  v.  Hammond/ 
saj's:  "My  view  is  that  agency  is  in  such  cases  deduced  from  part- 
nership rather  than  partnership  from  agency."  But  the  critics  offer 
nothing  as  satisfactory  in  its  place. 

As  consequences  rather  than  as  tests,  if  he  is  a  partner,  he  has  a 
lien  to  compel  the  application  of  the  assets  to  the  payment  of  the 
debts,  and  the  debts  must  be  paid  before  a  court  will  permit  him  to 
share;  and  he  obtains  his  share  of  the  profits,  not  as  a  personal 
creditor  of  his  associate,  but  out  of  the  assets  prior  to  the  separate 
creditors  of  the  copartners,  and  independent  of  the  latter  s  con- 

1  Oliver  u  Gray,  4  Ark.  425 ;  Dwi-  gestcd   by   Cleasby,    B.,    Holme  v. 

nel  V.  Stone,  30  Me.  384;  Sailors  v.  Hammond,  L.  R.  7  Ex.  218,  233: — if 

Nixon-Jones    Printing    Co.    20    111.  A.  puts  in  tlie  capital,  and  B.  and  C. 

App.    509;  McDonald  v.  Matney.  83  are  to  carry  on  the  business  in  their 

Mo.,  358,  3%;  Livingston  v.  Lynch,  own  names,  A.  not  to  appear  at  all, 

4  Johns.  Ch.  573,  592.  or  interfere,  or  buy  or  sell,  or  sign 

^Agency  was  also  adopted  as  the  negotiable   paper,  here   there   is  no 

test  in  Kdsliaw  v.  Jukes,  3  Best  &Sm.  agency,  although  a  person  becoming 

847;  Bulleri  v.  Sharp,  L.  R.  1  C.  P.  86;  aware  of  tlie  dormant  partner,  but 

In  re  English  and  Irish  Church,  etc.  not  of  the  limitation  upon  his  au- 

Assur.  Soc.  1  Plen  &  M.  85.    Agency  thority,  could  bind  the  firm  by  deal 

is  not  a  perfect  test,  for  parties  may  ing  with  him. 

bo  partners  inter  se  because  they  so  *  5  Ch.  Div.  458. 

intend,  although  one  is  deprived  of  *  L.  R.  7  Ex.  218. 

all    authority,   as  in  the  case  sug-  • 

18 


TESTS  OF  A  PARTNERSHIP.  §  19. 

sent,  bankruptcy,  insolvency,  death  or  assignment;  and  conversely, 
if  lie  can  share  with  the  creditors,  yet  the  existence  of  such  a  lien 
would  show  an  intention  to  be  partners,  and  the  existence  of  a 
power  of  disposition  arising  from  the  relation  of  the  parties  would 
show  the  same  intention. 

§  19.  Modern  law;  English. —  It  now  becomes  necessary 
to  examine  seriatim  the  principal  modern  English  decisions 
repudiating  the  distinction  between  partnerships  inter  se, 
and  those  which  are  such  only  as  to  third  persons  in  conse- 
quence of  a  sharing  of  profits,  and  then  to  see  the  influence 
these  decisions  have  had  upon  the  American  law. 

In  Cox  V.  Hickman./  a  firm  of  B.  Smith  &  Son,  carrying  on  busi- 
ness at  the  Stanton  Iron  Works,  becoming  embarrassed  surren- 
dered the  control  of  their  property  to  trustees  appointed  by  their 
creditors,  who  numbered  over  one  hundred,  under  a  deed  by  which 
trustees  for  creditors  were  to  carry  on  the  business  under  the  name 
of  The  Stanton  Iron  Co.,  with  power  to  do  whatever  was  necessary 
for  that  purpose,  and  to  divide  the  net  income,  which  was  always 
to  be  deemed  the  property  of  the  Smiths,  among  the  creditors,  and 
when  the  debts  were  all  paid  then  to  hold  for  the  Smiths.  In  fact, 
of  the  trustees,  one  refused  to  act  and  the  other  shortly  resigned, 
and  the  business  was  conducted  by  three  others  of  the  creditors; 
but  this  forms  no  part  of  the  opinions  rendered,  though  it  might 
have  done  so.  Hickman  supplied  goods  to  the  Stanton  Iron  Co. 
and  drew  bills  on  them,  which  were  accepted  in  the  name  of  the 
company  by  one  of  the  three  managers,  and  action  was  brought 
upon  one  of  the  bills  against  the  defendants,  who  were  among  the 
creditors,  as  partners.  The  question  then  was,  were  the  creditors  liar- 
ble  as  partners  ?  The  judges  in  the  exchequer  chamber  were  equally 
divided.  Of  the  lords,  composed  of  the  Chancellor  (Cami)bell), 
Cran worth  and  Wensleydale,  who  rendered  opinions.  Brougham  and 
Chelmsford  concurring,  all  agreed  that  the  defendants  were  not  lia- 
ble, for  they  were  not  partners  inter  se,  and  never  intended  to  be 
liable  as  partners.  Lord  Cranworth,  Avho  delivered  the  principal 
opinion,  says:  "  The  liability  of  one  partner  for  the  acts  of  his  co- 
partner is,  in  truth,  the  liability  of  a  principal  for  the  acts  of  his 
agent."  .  .  .  ''A  right  to  participate  in  profits  affords  cogent, 
often  couclusive,  evidence  that  the  trade  in  which  the  profits  have 

>8H.  of  L.  Cas.  268  (1860). 

19 


§  20.  NATURE  AND  FORMATION. 

been  made  was  carried  on  in  part  for  or  on  behalf  of  the  person 
setting  up  such  a  claim.  But  the  real  ground  of  liability  is  that 
the  trade  has  been  carried  on  b}^  persons  acting  on  his  behalf; 
.  .  .  that  he  stood  in  the  relation  of  principal  towards  the  per- 
sons acting  ostensibly  as  the  traders."  "  The  debtor  is  still  the 
person  solely  interested  in  the  profits,  save  only  that  he  has  mort- 
gaged them  to  the  creditors.  He  receives  the  benefit  of  the  profits 
as  they  accrue,  though  he  has  precluded  himself  from  applying 
them  to  any  other  purpose  than  the  discharge  of  his  debts.  The 
trade  is  not  carried  on  by  or  on  account  of  the  creditors,  though 
their  consent  is  necessary  in  such  a  case,  for  without  it  all  the  prop- 
erty might  be  seized  by  them  in  execution;  .  .  .  the  debtor  or 
the  trustees  are  the  persons  by  or  on  behalf  of  whom  it  is  carried 
on."  He  further  said  that  the  provision  that  the  creditors  might 
order  a  discontinuance  of  the  business  is  only  to  qualify  their  con- 
sent to  it;  that  the  reservation  of  such  a  power  in  a  third  person 
would  not  make  the  creditors  partners  if  they  were  not  so  already, 
and  it  makes  no  difference  that  the  power  was  reserved  to  them- 
selves. Lord  Wensletdale  also  said:  "  The  law  as  to  partnership 
is  undoubtedly  a  branch  of  the  law  as  to  principal  and  agent." 
"  Hence  it  becomes  a  test  of  the  liability  of  one  for  the  contract  of 
another,  that  he  is  to  receive  the  whole  or  a  part  of  the  profits  aris- 
ing from  the  contract  by  virtue  of  the  agreement  made  at  the  time 
of"  the  employment."  "  I  think  it  is  impossible  to  say  that  the 
agreement  to  receive  this  debt  so  secured,  partly  out  of  the  existing 
assets,  partly  out  of  the  trade,  is  such  a  participation  in  profits  as 
to  constitute  the  relation  of  principal  and  agent  between  the  cred- 
itors and  trustees."  It  is  to  be  noticed  that  the  lords  expressed  their 
intention  of  not  overruling  the  previous  cases.' 

§  20.  independent  contractors  dividing  profits  of  a 

job.—  In  Kilshaw  v.  Jukes,  3  Best  &  Smith,  847  (Q.  B.  1863),  Kil- 
shaw  had  sold  timber  to  the  defendants.  Till  &  Wynn,  and  now 
claims  that  Jukes  was  their  dormant  partner  and  liable  for  the  debt. 
The  three  defendants  had  jointly  agreed  to  purchase  a  piece  of  land 
and  to  complete  buildings  upon  it,  the  vendors  agreeing  to  advance 
money  for  the  buildings,  and  the  conveyance  to  be  to  the  three  on 

Js.  C.  as  Wheatcroft  v.   Hickman,     Scac,  which  afHrmed  the  Common 
9  C.  B.  N.  S.  47 ;  reversing  Hickman    Pleas  in  18  C.  B.  617. 
V.  Cox,  3  C.  B.  N.  S.  533,  in  the  Cam. 

20 


TESTS  OF  A  PARTNERSHIP.  §  21. 

completion  of  the  buildings,  and  all  were  liable  to  the  vendors  for 
the  purchase  money.  The  timber  bought  of  plaintiif  was  for  the 
erection  of  the  buildings.  Inter  se  the  agreement  was  that  Till  & 
Wynn  should  erect  the  buildings  themselves  and  Jukes  should 
have  an  interest  only  to  the  extent  of  an  old  debt  owed  him  by 
them  and  for  such  iron  as  he  should  supply  for  the  buildings;  any 
surplus  was  to  be  Till  &  Wyun's,  and  if  the  proceeds  should  be  in- 
sufficient to  repay  Jukes  he  was  to  be  a  loser,  and  he  gave  no 
authority  to  Till  &  Wynn  to  order  timber  on  bis  account.  Black- 
BUiiH,  J.,  analyzed  the  question  thus:  All  three  are  of  course  liable 
to  the  vendor  to  pay  for  the  land  and  to  procure  the  erection  of 
buildings,  but  this  is  quite  consistent  with  Jukes  being  no  party 
to  the  contracts  for  material  or  labor  for  the  buildings,  as  all  three 
might  have  had  a  contractor  erect  the  buildings  for  their  benefit 
without  being  liable  for  the  material  or  labor  obtained  by  the  con- 
tractor; and  if  Jukes  bona  fide  and  not  as  a  clerk  made  a  similar 
arrangement  with  Till  &  Wynn,  by  which  he  put  them  in  the 
position  of  a  contractor,  there  is  nothing  to  prevent  him;  and  the 
only  question  is  whether  the  interest  he  reserved  to  himself  made 
him  liable  as  a  partner;  and  held  that  under  Cox  v.  Hickman  the 
interest  on  the  profits  did  not  make  Jukes  a  partner.  Wightman, 
J.,  dissenting  on  the  ground  that  Cox  v.  Hickman  was  upon  cir- 
cumstances so  peculiar  as  not  to  be  of  general  application. 

§  21.  loan  on  profits  as  interest;  annuity  creditor. — 

In  Bullen  v.  Sharp,  L.  R.  1  C.  P.  86  (Cam.  Scac.  1865),  the  defend- 
ant's son  became  an  underwriter,  and  in  consideration  of  Sharp, 
the  elder,  guarantying  the  son  to  the  extent  of  £5,000  in  such  busi- 
ness, the  son  promised  to  pay  the  father  an  annuity  of  £500  per 
annum,  to  be  increased  in  case  one-fourth  of  the  son's  average  an- 
nual net  profits  during  the  first  three  years  exceeded  £500.  The 
average  annual  profits  exceeded  £2,000.  By  a  subsequent  deed  of 
settlement,  the  son,  when  about  to  marry,  made  his  father  and 
another  trustees;  the  trustees  to  receive  the  proceeds  of  the  business 
from  its  manager  and  hold  them  in  trust  to  pay  the  annuity  and 
an  allowance  to  the  son,  and  accumulate  the  surplus  for  the  benefit 
of  the  business  and  the  son's  family.  The  son  became  bankrupt, 
and  a  policy-holder  sued  the  father  as  partner.  The  father  had 
expressly  stipulated  with  the  son  that  he  was  not  a  partner,  but 
this  was  not  known  to  the  plaintiff  and  therefore  did  not  affect  the 
question.     Blackbukx,  J.,  says  that  the  trustees  taking  the  profits 

21 


§  22.  NATURE  AND  FORMATION. 

as  a  reserve  fund  to  meet  the  emergencies  o-f  the  business,  and  not 
causing  the  business  to  be  carried  on  for  them,  does  not  constitute 
the  trustees  principals,  which  according  to  Cox  v.  Hickman  is  the 
true  question.  And  that  the  first  arrangement  with  the  father 
constituted  him  an  annuity  creditor,  and  went  no  further  than  did 
that  in  Cox  v.  Hickman,  and  the  trade  is  not  carried  on  by  or  on  ac- 
count of  the  annuitant  creditor.  Bramwell,  B.,  said:  "Partnership 
means  a  certain  relation  between  two  parties.  How  then  can  it  be 
correct  to  say  that  A.  and  B.  are  not  in  partnership  as  between 
themselves;  they  have  not  held  themselves  out  as  being  so,  and  yet 
a  third  person  has  a  right  to  say  they  are  so  as  relates  to  him?  " 
"  If  A.  agrees  with  B.  to  share  profits  and  losses,  but  not  to  inter- 
fere with  the  business,  nor  buy  nor  sell,  and  C,  knowing  this,  deals 
with  B.,  he  would  have  no  claim  on  A.  Why  should  he  if  he  does 
not  know  of  it?  Why,  upon  finding  out  something  between  A. 
and  B.  which  has  in  no  way  affected  or  influenced  him,  should  he 
who  has  dealt  with  B.  have  a  claim  on  A.  ?  "  The  whole  of  Baron 
Bramwell's  opinion  is  a  powerful  expose  of  the  illogical  and  untrue 
basis  of  the  old  law.     Shee,  J.,  and  Pigott,  B.,  dissented.' 

§22.  Same,  with  large  powers  of  control. —  In  Mollwo, 
March  &  Co.  v.  The  Court  of  Wards,  L.  R.  4  P.  C.  419  (1872), 
two  partners  as  W.  N.  Watson  &  Co.  were  deeply  indebted  to  the 
rajah  for  large  advances  in  their  business,  and  the  rajah,  to  have 
security  for  his  debt  and  for  future  advances,  and  wishing  also  to 
obtain  some  control  over  the  business,  by  which  he  might  check 
what  he  considered  the.  excessive  trading  of  the  Watsons,  entered 
into  a  contract  with  them  by  which  they  agreed  to  carry  on  their 
business  subject  to  his  control,  in  that  he  could  take  possession  of 
consignments,  and  the  Watsons  could  not  sell  or  make  shipments 
without  his  consent  or  draw  money  without  his  sanction,  and  he 
might  direct  a  reduction  or  enlargement  of  the  establishment,  and 
agreed  that  their  stock  in  trade  should  be  answerable  to  him,  and 
that  he  should  receive  twenty  per  cent,  of  the  net  profits  until  the 
debt  due  him  should  be  i)aid  off,  and  should  also  pay  him  twelve 
per  cent,  interest  on  the  debt.  In  fact  the  rajiih  never  received  any 
property,  proceeds  or  interest  and  exercised  but  little  control ;  but 
the  question  was  on  the  effect  of  the  agreement  to  make  him  liable 
as  a  partner  to  the  plaintiffs  for  a  debt  contracted  by  the  Watsons. 

iThis  case  was  followed  in  Ex  j^'frte  Tennant,  G  Ch.  D.  303. 

22 


TESTS  OF  A  PARTNERSHIP.  §  22. 

Sir  Montague  Smith,  rendering  the  decision  of  tlie  court,  after 
criticising  the  test  of  liability  as  partner  laid  down  in  Grace  v. 
Smith  and  Waugh  v.  Carver  as  based  on  unsound  reasons,  says 
"  the  judgment  in  Cox  v.  Hickman  had  certainly  the  effect  of  dis- 
solving the  rule  of  law  which  had  been  supposed  to  exist,  and  laid 
down  principles  of  decision  by  which  the  determination  of  cases  of 
this  kind  is  made  to  depend,  not  on  arbitrary  presumptions  of  law, 
but  on  the  real  contracts  and  relations  of  the  parties.  .  .  . 
Whether  that  relation  does  or  does  not  exist  must  depend  on  the 
real  intention  and  contract  of  the  parties."  To  the  argument  that 
the  large  powers  of  control  constituted  the  rajah,  in  fact,  the  man- 
aging partner,  he  says  that  the  rajah  had  no  initiative  power;  he 
could  not  direct  what  shipments  should  be  made  or  require  the 
Watsons  to  continue  to  trade;  his  powers,  however  large,  were 
powers  of  control  only.  It  was  held  that  the  parties  did  not  in- 
tend to  create  a  partnership;  that  their  true  relation  was  that  of 
creditor  and  debtors;  that  the  trade  was  not  carried  on  for  the  com- 
mon benefit  of  the  Watsons  and  the  rajah  so  as  to  create  a  partner- 
ship, nor  carried  on  for  the  rajah  as  principal  in  any  other 
character;  that  he  was  not  in  any  sense  the  owner  of  the  business. 

In  Dean  v.  Harris,  33  L.  T.  N.  S.  639,  A.,  by  written  agreement, 
lent  B.  £2,000  as  capital  to  develop  mines,  A.  having  a  lien  on  the 
mines  to  secure  repayment,  and  to  receive  Zd.  per  ton  on  the 
product  as  commission;  B.  to  receive  a  salary,  which  was  not  to 
commence  until  A.  had  been  repaid,  and  A.  was  to  have  three- 
fourths  and  B.  one-fourth  of  the  net  profits.  A.  advanced  in  all 
£11,000  and  died.  He  was  held  not  to  be  liable  as  a  partner  for 
the  debts. 

In  Kelly  v.  Scotto,  49  L.  J.  Ch.  383;  42  L.  T.  N.  S.  827,  S.  hav- 
ing a  building  contract  to  erect  eight  houses  and  needing  funds, 
H.  made  advances  to  him,  taking  his  contract  as  security''  for  repay- 
ment, S.  agreeing  to  finish  two  of  the  houses,  keeping  accounts  of 
the  cost  open  to  H.'s  inspection,  to  procure  leases  of  the  houses  to 
nominees  of  H.  and  sell  the  leases  at  prices  fixed  by  H.  and  apply 
the  proceeds  to  repay  H.'s  advances;  H.  also  to  have  half  the  dif- 
ference between  the  cost  and  the  proceeds,  and,  in  case  of  deficiency 
to  pay  his  advances  and  share  of  the  proceeds,  were  not  to  have  a 
lien  upon  the  other  houses.  H.  was  held  not  liable  as  a  partner 
for  the  timber  used  in  building.' 

iFor  cases  where  a  pretended  loan  is  a  mere  device,  see  infra,  §  50. 

23 


§  23.  NATURE  AND  FORMATION. 

§  23.  Influence  of  Cox  v.  Hickman  in  America. —  The  most 
prominent  feature  of  the  modern  English  law  may  be 
summed  up  as  follows:  A  person  is  not  liable  as  a  partner 
to  third  persons  unless  he  is  an  actual  partner  inter  se,  the 
case  of  holding  out  of  course  apart. 

This  doctrine  is  announced  as  the  law  in  the  followino- 
cases,  which  will  be  examined  seriatim^  with  a  simplified 
statement  of  the  facts  of  each;  for  in  some  of  them  the 
court  has  seized  the  opportunity  to  express  an  emphatic  ap- 
proval and  adoption  of  the  doctrine  where  the  facts  of  the 
case  did  not  strictly  involve  it.^ 

In  Meehan  v.  Valentine,  29  Fed.  Rep.  276,  A.  lent  $10,000  to 
partners,  who  were  at  the  end  of  a  year  to  pay  him  one-tenth  of 
the  profits  over  $10,000,  and  if  the  profits  did  not  exceed  $10,000, 
then  merely  interest  on  the  sum  loaned.  In  an  action  on  notes 
made  by  the  firm  it  was  held  that  A.  was  not  a  partner;  that  par- 
ticipation in  profits  did  not  constitute  a  partnership,  though  suffi- 
cient proof  of  it  in  the  absence  of  other  evidence.  The  court  approves 
Cox  V.  Hickman,  and  says  that  Berthold  v.  Goldsmith,  24  How.  536, 
13  not  contrary  to  the  modern  law. 

In  re  Francis,  2  Sawy.  286;  s.  c.  7  Bankr.  Reg.  359,  while  hold- 
ing the  loan  in  that  case  to  be  a  device,  and  therefore  a  contract 
of  partnership,  approves  the  doctrines  of  Cox  v.  Hickman.  Deady, 
J.,  rules  that  if  the  evidence  is  consistent  with  a  partnership  or  a 
mere  employment,  the  burden  of  proof  is  upon  the  participants  in 
the  profits  to  show  that  he  is  not  a  partner  when  sued  by  third 
persons. 

Be  Ward,  8  Reporter,  136  (U.  S.  D.  C.  Tenn.  1879),  holds  that  a 
loan  with  interest  in  a  proportion  of  profits  or  share  of  profits  does 
not  'per  se  import  a  partnership,  though  strong  evidence  of  it,  and 
approves  Cox  v,  Hickman.* 

In  Culley  v.  Edwards,  44  Ark.  423,  an  agreement  as  follows:  Re- 
ceived $9,491.77  which  I  invested  in  merchandise  in  1866,  which 
moneys  I  promise  to  keep  invested  in  merchandise  or  other  business 
■which  may  be  agreed  upon  until  May  1, 1886,  at  which  time  I  prom- 

1  Many  earlier  American  cases  had  Marshall,  12  Conn.  69 ;  30  Am.  Dec. 
recognized  that  to  constitute  one  a  596 ;  Polk  v.  Buchanan,  5  Sneed 
partner  even  as  to  third  persons  he    (Tenn.),  721. 

must  be  a  principal.      Berthold  v.        '^  See,   also,   Moore    v.   Walton,   9 
Goldsmith,  24  How.  536;  Loomis  v.     Bankr.  Reg.  403. 

24 


TESTS  OF  A  PARTNERSHIP.  §23. 

ise  to  pay  it  back  with  one-half  the  net  earnings,  was  held  not  to 
show  a  partnership  because  the  party  was  bound  to  refund  the  prin- 
cipal in  any  event.  The  court  say  further  that  participation  in 
profits  as  a  test  of  partnership  is  abandoned  in  England  and  in 
this  country,  and  that  the  test  is  whether  the  business  is  carried  on 
on  behalf  of  the  person  claimed  to  be  charged;  that  is,  was  he  a  prin- 
cipal towards  the  ostensible  traders?  And  they  approve  and  adopt 
the  doctrines  of  Cox  v.  Hickman  and  the  other  later  English  cases, 
th  3ugh  the  question  in  the  case  was  inter  se  and  not  as  to  third 
persons. 

In  Le  Levre  v.  Castagnio,  5  Colorado,  564,  M.  owned  a  mine,  and 
having  no  money  to  work  it,  L.  furnished  him  with  $2,000,  in  con- 
sideration of  which  M.  agreed  to  give  him  one-fifth  of  the  profits, 
and,  in  order  to  secure  him  in  the  advances,  to  deliver  to  him  all  the 
ore  untij  repayments.  This  was  held  not  to  be  a  partnership  inter  se 
or  as  to  third  persons. 

In  Vinson  v.  Beveridge,  3  MacArthur  (D.  C),  597,  it  was  held 
that  a  person  receiving  a  share  of  the  profits,  but  without  being  a 
partner,  is  not  liable  as  one  in  the  absence  of  a  holding  out. 

In  Smith  v.  Knight,  71  111.  148;  22  Am.  Rep.  94,  a  firm  agreed 
to  advance  money  to  H.  to  enable  him  to  do  a  commission  busi- 
ness, for  which  he  was  to  pay  legal  interest  and  divide  commis- 
sions, less  office  expenses,  the  firm  not  to  be  liable  for  losses.  This 
was  held  not  to  render  the  firm  liable  as  his  partners  to  third  per- 
sons for  losses,  because  the  intention  of  the  parties  is  to  be  consid- 
ered, and  that  was  that  losses  were  not  to  be  shared.' 

In  Macy  v.  Combs,  15  Ind.  469  (1860),  it  was  held  that  the  in- 
tention of  the  parties  is  often  necessary  in  case  of  doubt,  even  to 
ascertain  if  a  partnership  exists  as  to  third  persons. 

In  Williams  v.  Soutter,  7  Iowa,  435  (1858),  in  an  action  against 
S.  and  D.  for  the  price  of  goods  sold,  an  agreement  was  admitted  in 
evidence  whereby  D.  agreed  to  lend  S.  $2,000,  to  be  employed  in 
business,  for  twelve  months,  to  be  repaid  with  thirty  per  cent,  in- 
terest or  one-third  the  profits,  less  business  expenses,  if  desired, 
but  D.  not  to  be  expected  to  take  an  active  pai't  in  the  business. 

lln  Niehoff  v.  Dudley,  40  111.  406,     an  intention    expressed    not    to  be 
a  loan  on  a  share  of  profits  in  lieu  of    partners,  they  are  not  such  even  as 
interest,  though  evidence  of  a  part-     to  third  persons.     For  tlie  facts  of 
nership,  held  not  absolute;  the  inten-    this  case  see  §  48. 
tion  governs;  and  here  there  being 

25 


§  23.  NATURE  AND  FORMATION. 

This,  with  other  evidence,  was  deemed  to  show  a  partnership;  but 
as  the  judgment  was  reversed  because  some  of  tlie  other  evidence 
of  a  partnership  was  hearsay,  it  follows  that  the  court  did  not  con- 
sider the  above  agreement  to  amount  to  a  partnership,  for  other- 
wise the  incompetent  evidence  would  have  been  immaterial. 

In  Chaffraix  v.  Lalitte,  30  La.  An.  Part  I,  031  (1878),  a  bank 
made  an  agreement  with  two  firms,  one  firm  in  the  sugar  business 
to  buy  molasses  and  ship  in  the  name  of  the  other,  a  cotton  firm, 
deliver  to  the  latter  the  bills  of  lading,  the  latter  to  pay  for  it  with 
the  money  of  the  bank;  the  two  firms  to  receive  part  of  the  profits 
for  services  and  share  the  losses.  This  was  held  not  a  partnership 
between  the  three,  even  as  to  third  persons,  they  not  having  in- 
tended to  form  a  partnership,  nor  held  themselves  out  as  such. 

In  Beecher  v.  Bush,  45  Mich.  188  (10  Am.  Rep.  465),  it  was  held 
that  where  a  person  hires  a  hotel  from  another  and  runs  it,  paying 
the  owner  from  day  to  day  a  sum  equal  to  one-third  of  the  gross 
receipts,  this  is  not  a  partnership;  and  there  is  no  such  thing  as  a 
partnership  as  to  third  persons  when  there  is  none  inter  se,  in  the  ab- 
sence of  concealment  or  deception.  The  court  (Cooley,  J.,  pp.  200- 
202)  approve  the  late  English  decisions  to  the  full  extent,  and  say 
that  the  elements  of  partnership  are  communit}'^  of  interest  in  the 
business,  for  the  conduct  of  which  the  parties  are  mutually  prin- 
cipals and  agents  for  each  other,  with  general  powers  within  the 
scope  of  the  business,  though  these  powers  may  inter  se  be  re- 
stricted, even  to  making  one  partner  the  sole  agent;  yet  if  there  is 
no  agency  there  is  no  partnership,  and  the  agency  must  be  intended 
by  the  parties.' 

In  Kellogg  Newspaper  Co.  v.  Farrell,  88  Mo.  504  (1888),  by  an 
agreement  between  F.  and  L.,  F.  turns  over  his  newspaper  to  L.  for 
one  year,  L.  agreeing  to  run  it  in  every  respect  as  if  he  were  the 
owner,  in  his  own  name,  pay  all  expenses  and  give  F.  one-half  the 
net  profits  quarterly,  F.  reserves  the  right  to  indicate  the  general 
and  political  policy  of  the  paper  and  to  sell  the  one-half  interest 
at  any  time,  and  will  then  lease  to  L.  the  other  half  at  $1,500  per 
annum.  The  plaintiff  sold  materials  to  L.  and  now  sues  F.  for  the 
price.  It  was  held  that  F.  was  not  liable  as  a  partner;  that  shar- 
ing of  profit  and  loss  does  not  necessarily  constitute  a  partnership, 
but  it  is  a  question  of  intent,  and  L.  was  to  conduct  the  paper  as 

1  Followed  in  Colvvell  v.  Brittou  (Mich.),  26  N.  W.  Rep.  538. 

26 


TESTS  OF  A  PARTNERSHIP.  §  23. 

owner  and  not  as  partner  and  pay  all  expenses.  F.'s  reservation 
of  a  control  of  the  policy  of  the  paper  was  not  a  control  over  its 
business  affairs,  and  the  one- half  the  proceeds  to  be  paid  him  was 
merely  compensation.' 

In  Parchen  v.  Anderson,  5  Montana,  438  (1885),  N.  let  two  parfc- 
D:'rs,  A.  &  S.,  have  $500  on  the  following  agreement:  "In  con- 
sideration of  $500  we  sell  one-fourth  of  the  net  profits  of  the 
Centennial  mill  to  X."  It  was  held  not  sufficient  to  constitute  N. 
a  partner,  he  not  intending  to  be  one.  The  court  approve  the 
modern  English  and  American  cases,  and  while  saying  that  the 
agreement  is  strong  evidence  that  N.  was  a  partner,  but  that  shtir- 
ing  profits  alone  is  not  an  arbitrary  test,  add  (pp.  447  and  457)  that 
if  there  is  no  partnership  inter  se  there  can  be  none  as  to  third 
persons,  except  by  holding  out.  They  notice,  however,  that  net 
profits  may  mean  the  results  of  business  already  transacted  and 
concluded. 

In  the  court  of  appeals  of  New  York,  in  Leggett  v.  Hyde,  58 
N.  Y.  272,  281  (17  Am.  Rep.  244),  (aff'g  1  N.  Y.  Supreme  Ct.  418), 
it  was  said  that  the  doctrines  of  Cox  v.  Hickman  had  not  been 
adopted  in  that  state,"  and  accordingly  a  loan  on  a  share  of  profits 
in  lieu  of  interest,  the  principal  to  be  repaid  regardless  of  the  suc- 
cess of  the  business,  was  held  to  constitute  the  parties  partners  as 
to  third  persons,  contrary  to  the  lender's  intention.  It  was  justly 
observed  in  the  supreme  court  of  Michigan  in  Beecher  v.  Bush,  45 
Mich.  188,  195-6,  that  in  New  York  the  doctrine  that  participation 
in  profits  created  the  liability  of  partners  had  been  closely  adhered 
to,  and  that  the  courts  were  hampered  by  their  own  early  decisions 
and  had  not  followed  Cox  v.  Hickman  to  the  full  extent. 

But  the  later  New  York  cases  do  not  sustain  these  rulings  and 
statements.     In  Central  City  Sav.  Bk.  v.  Walker,  6Q  N.  Y.  424, 

1  See,  also,  Kelly  v.  Gaines,  24  Mo.  made  in  Burnett  v.  Snyder,  81  N.  Y. 

App.  506.     In  Campbell  v.  Dent,  54  550    (37    Am.    Rep.   527),   with    the 

Mo.  325,  332,  it  was  said  that  com-  further  statement  that  the  sharing 

munion  of  profits  would  not  consti-  profit  and  loss  must  be  as  a  proprie- 

tute  a  partnership  unless  each  party  tor  with  a  right  to  an  account  and  a 

had  an  interest  in  the  profits  as  prin-  lien,  and  that  therefore  a  sub-part- 

cipal    trader,   and  the  old   case    of  ner  is  not  liable  as  partner  to  third 

Waugh  V.  Carver  (§  16)  was  said  to  persons.     Thus  the   opinion    denies 

be  bad  law,  both  in  England  and  this  Cox  v.  Hickman  and  ailoptsit  in  full 

country.  immediately  afterwards. 


2  The  same  statement  was  again 


27 


§  23.  NATURE  AND  FORMATION. 

•430,  Allen,  J.,  said  that  to  constitute  a  partnership  as  to  tliird 
persons  there  must  be  an  assent  of  the  individuals  to  the  creation 
of  that  relation,  or  an  estoppel  or  ratification,  and  cites  the  New 
Hampshire  case  of  Eastman  v.  Clark,  which  approves  the  modern 
decisions  to  the  full  extent.  And  a  sharing  of  profits  in  lieu  of  in- 
terest on  a  loan  has  since  been  held  not  to  create  a  partnership.* 

In  Eastman  v.  Clark,  53  N.  H.  276  (16  Am.  Rep.  192),  two  per- 
sons, each  owning  a  coach  and  horses,  agreed  to  run  a  line  of 
coaches  between  two  points  and  divide  the  gross  receipts,  and  this 
was  held  not  to  constitute  a  partnership  inter  se  or  as  to  third  per- 
sons. The  opinion  in  this  case  is  several  hundred  pages  long  and 
very  minute  in  its  examination  of  authorities.  It  attacks  the  rule 
that  participating  in  the  net  profits  creates  the  liability  of  partner 
as  to  third  persons  with  great  severity.  It  strongly  approves  and 
adopts  the  law  as  laid  down  in  Cox  v.  Hickman  and  cognate  cases, 
and  holds  that  agency  is  the  true  test,  and  that  the  interest  in  the 
profits  must  be  as  a  principal  trader. 

This  case  necessarily  overrules  doctrines  such  as  those  laid  down 
in  the  earlier  case  of  Bromley  v.  Elliot,  38  N.  H.  287,  306. 

In  Wild  V.  Davenport,  18  N.  J.  L.  129,  where  an  executor  was 
receiving  part  of  the  profits  under  the  will  of  a  deceased  partner, 
the  court  said  that  participation  in  profits  was  not  an  invariable 
test  of  partnership,  and  that  if  a  party  is  not  actually  in  business 
as  a  principal  trader  he  is  not  liable  as  a  dormant  partner  except 
by  virtue  of  a  contract  making  him  actually  a  partner. 

In  Brundred  v.  Muzzy,  25  N.  J.  L.  268,  a  contract  recited  that 
Brundred  &  Son  owed  Bell  &  Son,  and  to  secure  the  debt,  and  for 
further  advances,  authorized  Bell  &  Son  to  have  the  entire  manage- 
ment and  control  of  their  business  until  the  debt  was  reduced  to 
$10,000,  giving  them  until  then  sole  power  to  collect  all  money's 
due  and  pay  all  present  and  future  indebtedness,  and  assigning 
them  all  the  property  of  Brundred  &  Son,  who  would  draw  a  stated 
sum  for  support.  This  was  held  not  to  make  Bell  &  Son  partners, 
and,  therefore,  not  liable  on  a  subsequent  note  made  by  Brundred 

iln  Richardson  v.  Ilughitt,   76  N.  Fowler,  87  id.  33  (41  Am.  Rep.  343), 

Y.  55  (33  Am.  Rep.  267),  where  tlie  (aff'g   14  J.    &  Sp.    195),    where   the 

product  was  to  be  put  into  the  lend-  lender  was  to  receive  interest  and 

er's  hands  as  security,  and  an  ac-  half  the  profits.     See.  also,   Cassidy 

count  of  sales  made  to  him.     Eager  v.  Hall.  97  N.   Y.    159;  Magovern  v 

V.    Crawford,    76    id.    97;   Curry  v.  Robertaon,  40  Hun,  166. 

28 


TESTS  OF  A  PARTNERSHIP.  §  23. 

&  Son.  For  even  if  Bell  &  Son  are  to  take  all  the  profits,  they  take 
as  creditors  and  not  as  participators,  and  such  profits  inure  to  the 
benefit  of  Bruudred  &  Son. 

In  Harvey  v.  Childs,  28  Oh.  St.  319  (23  Am.  Rep.  387),  P.  had 
contracted  for  two  car  loads  of  hogs  and  agreed  that  if  C.  would 
lend  him  money  enough  to  pay  for  them  and  others,  enough  to 
make  up  two  car  loads,  C,  could  take  possession  as  securit}',  sell 
them  and  keep  one-third  of  the  net  profits,  but  the  money  was  to 
be  repaid  in  full  in  case  the  proceeds  were  insufiicieut,  so  that  C. 
should  have  no  loss.  There  was  a  loss,  but  P.  repaid  C.  in  full,  but 
had  not  paid  for  the  hogs,  aad  the  vendor  sued  C.  for  the  price,  and 
the  arrangement  was  held  not  to  be  a  partnership  but  a  loan  and 
a  pledge;  the  hogs  were  P.'s  and  not  C.'s.  Cox  v.  Hickman  and  sim- 
ilar cases  are  approved  and  announced  to  be  the  law,  and  the  rela- 
tion of  each  as  principal  and  agent  to  be  the  true  test  of  partnership, 
and  liability  to  rest  on  the  ground  that  it  was  incurred  on  the  ex- 
press or  implied  authority  of  the  party  sought  to  be  charged,  and 
profits  must  be  shared  as  principals  in  a  joint  business  where  each 
has  express  or  implied  authority  to  bind  the  others. 

In  Hart  v.  Kelley,  83  Pa.  St.  286,  A.  agreed  to  loan  B.  sufficient 
to  enable  him  to  carry  on  a  saloon  business  in  a  specified  house,  the 
lender  to  receive  three-fourths  of  the  net  profits  as  compensation 
for  the  use  of  the  money.  In  an  action  against  him  for  work  and 
labor  on  the  property  he  was  held  not  a  partner,  and  Cox  v. 
Hickman  was  approved.  It  is  statutory  in  Pennsylvania,  however, 
that  a  lender  of  money  on  a  share  of  profits  in  lieu  of  interest  is  not 
a  partner.* 

In  Boston,  etc.  Smelting  Co.  v.  Smith,  13  R.  I.  27  (43  Am.  Rep. 
3),  a  contract  by  which  M.  is  to  loan  S.  $5,000  for  one  year  and  in- 
dorse for  him,  for  which  S.  is  to  pay  him  ten  per  cent,  of  his  net 
business  profits  and  two  per  cent,  of  his  net  profits  for  every  $1,000 
indorsed  for  him  over  said  $5,000,  S.  agreeing  to  conduct  his  business 
to  the  best  advantage,  keep  accurate  accounts  open  at  all  times  to 
M.'s  inspection,  was  held  not  to  constitute  a  partnership  but  to  be 
a  mere  contract  of  loan;  there  being  no  reason  to  suspect  a  latent 
design  to  form  a  partnership,  under  the  disguise  of  a  loan;  and  the 

Is.  p.  also  Irwin  v.  Bidwell,  72  Pa.  ceive  a  share  of  profits  and  a  sum 
St.  244,  and  Lord  v.  Proctor,  7  Fliila.  equal  to  a  share  of  profits  seems  to  be 
630;  but  iu  Pennsylvania  the  old  dif-  recognized.  Lord  v.  Proctor,  7  Phila. 
fereuce  between  an  agreement  to  re-     630 ;  Irwin  v,  Bidwell,  72  Pa.  St.  244. 

29 


§  23.  •  NATURE  AND  FORMATION. 

agreement  as  to  the  conduct  of  the  business  being  merely  a  require- 
ment to  observe  good  faith.  The  court  say  that  the  later  English 
cases  are  the  truest  exposition  of  the  common  law. 

In  Polk  V.  Buchanan,  5  Sneed  (Tenn.),  721,  one  who  has  loaned 
money  to  a  mining  concern,  and  as  a  security  has  taken  a  convey- 
ance of  one-half  of  their  mines,  and  was  to  receive  one-fourth  of  the 
profits  in  consideration  of  the  loan,  but  without  intention  of  being 
a  partner,  does  not  become  one  as  to  third  persons,  and  was  there- 
fore held  not  liable  for  the  hire  of  slaves. 

In  Bnzard  v.  First  Nat.  Bank  (Tex.  1886),  2  S.  W.  Rep.  54,  Buz- 
ard,  who  had  employed  Pennington  as  his  agent  on  a  salary  to 
buy  and  sell  cattle,  by  a  new  agreement  advanced  to  him  §16,500 
to  be  used  in  buying  cattle;  Pennington  to  buy,  keep  and  sell 
them,  use  the  proceeds  to  repay  the  advance,  and  divide  the  net  pro- 
ceeds equally.  If  the  proceeds  were  not  sufficient,  Buzard  was  to  get 
back  his  money  and  Pennington  to  receive  nothing,  but  was  to  have 
no  loss  except  of  his  labor,  his  share  of  profits  being  in  lieu  of  his 
former  salary.  The  cattle  were  to  bear  Buzard's  brand,  but  Pen- 
nington was  to  use  his  discretion  in  the  business,  excepting  that 
Buzard  fixed  certain  limitations  of  prif^es  in  buying  and  selling. 
In  an  action  on  a  note  given  by  Pennington  in  his  own  name  for 
money  advanced  by  plaintiff  and  put  into  cattle,  it  was  held  that 
Buzard  was  not  liable,  as  he  did  not  intend  or  believe  himself  to  be 
a  partner.  The  court  approve  the  rule  of  Cox  v.  Hickman  and  at- 
tempt to  distinguish  Cothran  v.  Marmaduke,  60  Tex.  370. 

In  Chapline  v.  Conant,  3  W.  Va.  507,  C.  and  W.,  the  latter  as 
trustee  of  Mrs.  E.,  bought  and  equipped  a  hotel;  then  C.  and  E., 
the  husband  of  Mrs.  E.,  went  into  partnership  as  C.  &  E.  to  run  it, 
under  an  agreement  by  wJiich  C.  and  the  trustee,  Vv^.,  were  to  pay 
the  losses  and  divide  the  profits  equally.  E.  was  not  to  be  liable 
for  losses,  or  be  entitled  to  any  profits.  C.  was  to  pay  half  the 
profits  to  W.  as  trustee,  C.  and  W.  paying  the  losses  and  dividing 
the  profits  equally.  It  was  held  that  the  profits  pa3^ableto  VV.  were 
in  the  nature  of  rent;  that  as  the  evidence  showed  he  did  not  intend 
to  be  a  partner  with  C.  and  E.,  nor  did  they  intend  he  should,  nor 
did  he  act  as  such,  he  was  not  liable  as  one  to  a  third  person  upon  a 
negotiable  draft  made  by  C.  and  E.;  that  a  right  secured  to  W.  to 
inspect  the  books  and  require  an  account  does  not  make  him  one. 
Cox  v.  Plickman  is  approved  as  being  the  law.  The  test  was  said  to 
be  whether  the  supposed  partners  acquire  any  property  in  or  con- 

30 


TESTS  OF  A  PARTNERSHIP.  §  24. 

trol  over  or  specific  lien  to  the  profits  while  they  remain  undivided 
in  preference  to  other  creditors. 

In  In  re  Randolph,  1  Ontario  A  pp.  315,  R.,  by  an  agreement 
with  P.  and  H.,  was  to  consign  lumber  to  t'^t^m,  they  to  guaranty 
sales  and  receive  one-half  the  net  profits  instead  of  the  commissions 
which  they  had  been  in  the  habit  of  receiving  under  a  former  ar- 
rangement between  the  parties.  This  was  held  not  to  constitute  a 
partnership,  none  being  intended,  although  P.  and  H.  on  one  oc- 
casion shared  a  loss,  and  therefore  P.  and  H.  could  claim  as  cred- 
itors against  R.'s  estate  with  other  creditors.  Cox  v.  Hickman  is 
approved  and  followed  in  this  case. 

In  Darling  v.  Bellhouse,  19  Up.  Can.  Q.  B.  268,  an  agreement  by 
which  a  creditor  of  a  firm  was  to  be  paid  his  debt  in  instalments  and 
meantime  to  have  access  to  the  books  and  act  as  purchasing  agent  on 
a  salary,  aud  as  soon  as  the  shares  of  the  partners  should  equal  his 
debt  he  was  to  have  the  right  to  become  a  partner  or  draw  out  his 
debt  with  a  bonus  as  compensation  for  the  right  to  be  a  partner^ 
was  held  not  to  constitute  a  partnership.' 

§  24.  Proximate  tests  of  intention. —  The  intention  of  the 
parties  being  the  sole  criterion  of  partnership,  certain  prin- 
ciples may  be  laid  down  as  approximate  guides  to  ascertain 
it.  No  really  absolute  tests  can  be  given;  for  even  if  the 
vast  mass  of  cases  were  harmonious,  it  rarely  happens  that 
a  single  one  of  the  following  principles  controls;  on  the  con- 
trary, each  case  generally  involves  several,  some  of  which 
point  towards  partnership  and  others  to  a  contrary  inten- 
tion; hence  each  case  stands  somewhat  upon  its  own  cir- 
cumstances, much  as  in  the  cases  of  the  construction  of 
wills,  and  must  be  taken  by  the  four  corners. 

The  cases  will  be  considered  in  the  following  principal 

classes: 

I.  Where  the  agreement  is  to  share  both  profit  and  loss. 

1  To  tlie  same  effect,  see  Hill   v.  having  power  to  replenish  the  stock 

Bellhouse.    10   Up.  Can.    C.    P.    133.  from  time  to  time  to  facilitate  sales  of 

These  cases  wert-  decided  while  Cox  old  stock,  this  was  held  not  to  make 

V.    Hickman    was    pending    in    the  assenting  creditors  partners  therein, 

house  of  lords.  the  power  to  purchase  being  only  as 

In   MuuLson  ?;.  Peck,  18  Up.  Can.  absolutely  necessary  aud  not  to  make 

Q.  B.  113,  tru.stees  under  an  assign-  money, 
ment    for  the   benefit  of  creditors, 

31 


g  26.  NATURE  AND  FORMATION. 

II.  Where  the  agreement  is  to  share  profits  and  saying 
nothing  as  to  losses. 

III.  Where  the  agreement  is  to  share  profits  but  not 
losses. 

rV.  Where  the  agreement  is  to  share  gross  returns. 

I.    SHARING   BOTH  PROFIT  AND   LOSS. 

§  25.  An  agreement  to  share  in  the  profit  and  loss  of  a 
business  or  adventure  shows  an  intention  to  create  a  part- 
nership unless  such  evidence  of  intention  is  controlled  by 
stipulations  or  interpreted  by  conduct  inconsistent  with  it. 

§26.  Witlr  a  common  stock. —  Where  the  goods  or  ma- 
terial, or  the  money  wherewith  to  buy  them,  are  contributed 
by  all,  and  are  joined  in  a  common  stock,  and  are  to  be  used 
or  disposed  of  for  joint  benefit,  with  an  agreement  for  a  di- 
vision of  profit  and  loss,  this  constitutes  a  partnership.^ 

Thus,  where  four  persons  agreed  that  one  of  their  number  should 
buy  potatoes  in  New  Hampshire  and  Vermont,  send  them  to  mar- 
ket, each  to  be  accountable  for  liis  own  sales,  the  cost  of  purchasing 
and  the  profit  and  loss  to  be  in  specified  proportions,  it  was  held  a 
partnership,  for  the  purchases  were  for  sale  again  for  joint  benefits, 
negativing  the  idea  of  separate  interests,  and  the  division  of  profit 
and  loss  shows  that  it  is  not  a  mere  joint  ownership  of  property, 
but  with  right  of  separate  disposition,  ^.  ?.,  without  joint  profits. 
Nor  is  it  a  division  of  profits  as  compensation  for  services,  for  each 
put  in  part  of  the  capital  and  neither  was  the  servant  of  the  others, 
Nor  was  it  a  division  of  profits  as  compensation  for  the  use  of  capi- 
tal, for  they  owned  the  property  jointly,  without  agreement  for 

I  See  Mooie  v.  Davis,  11  Ch,  D.  201 ;  v.  Buutiii.  118  Mass.  279;  Bohrer  v. 

In  re  Warren,  2   Ware,  C.  C.    322;  Drake,  33  Minn.  408;  Priest  u.  Chou- 

Felichy  v.  Hamilton,  1  Wash.  C.  C.  teau,  13  Mo.   App.   253  (aff.  85  Mo. 

491;  Scott  V.  Campbell,  30  Ala,  728;  398);  Cumpston  v.  McNair,  1  Wend. 

Meaheru.  Cox,  37  Ala.  201;  Autrey  457;  Smith  v.  Small,  54  Barb.  223; 

V.  Frieze,  59  id.  587 ;  Laffau  v.  Naglee,  Arguimbo  v.  Hillier,  17  Jones  &  Sp. 

9  Cal.   663;  Solomon  v.  Solomon,  2  253;  Jones  v.   Call,  93  N.    Ca,    170; 

Ga,  18;  Morse  v.   Richmond,  97  111,  Choteau  v.  Raitt,  20  Oh.  133;  Burn- 

303  (aff.  6  111,  App,  16«);  Aultnian  v.  ley  v.  Rice,  18  Tex.  481,  496;  Duryea 

Fuller,  53  Iowa,  60  (in  effect  revera-  v.  Whitcomb,  31  Vt,   395;  Chapman 

ing  Iliff  V.  Braz.ll,  27  id,   131);  Star-  V.  Wilson,  1  Rob,  (Va.)  267. 
buck  V.  Shaw,  10  Gray,  492 ;  ^  cm  i  by 

33 


TESTS  OF  A  PARTNERSHIP.  §27. 

severance  until  final  accounting,  and  they  relied  on  the  proceeds 
and  property  for  reimbursement  aud  not  on  individual  credit." 

That  a  certain  class  of  losses  is  not  to  be  divided  makes  no  differ- 
ence; thus,  where  two  steamboat  owners  agreed  each  to  furnish  a 
certain  number  of  boats  in  which  the  respective  owners  should 
retain  the  property  and  assume  the  risk,  and  be  liable  for  losses  by 
accident  and  negligence,  but  the  compensation  of  joint  agents,  and 
damages  or  losses  on  cotton  should  be  a  joint  charge,  and  the 
profits,  less  running  expenses,  should  be  divided,  this  is  a  partner- 
ship inter  se."^ 

So  if,  on  dissolution  of  a  partnership,  one  partner  agrees  to  take 
all  the  assets,  pay  all  the  debts,  give  the  other  one-third  of  the  prof- 
its arising  from  sales  of  goods,  and  the  other  agrees  to  share  one- 
third  the  losses  and  act  as  clerk,  this  constitutes  a  partnership 
inter  se.^ 

Persons  who  purchase  land  on  speculation,  contributing  equally  to 
the  cost  and  the  expenses  of  platting  and  improving  it,  the  proceeds 
after  paying  expenses  to  be  equally  divided,  are  partners  and  all 
liable  on  a  note  made  by  one  of  their  number  in  whose  name  the 
title  was  taken,  he  being  authorized  to  make  loans,  although  the 
lender  was  not  aware  of  the  source  of  his  power/ 

Where  it  was  agreed  that  T.  should  make  a  note  and  four  others 
should  indorse  it;  that  the  note  should  be  discounted  and  the  pro- 
ceeds used  by  T.  to  buy  and  sell  brooms  in  his  own  name,  and  the 
proceeds  of  sale,  after  paying  the  note,  should  be  divided  and  profits 
and  losses  shared,  and  T.  sold  brooms  and  received  in  payment  for 
some  of  them  a  note  which  he  indorsed  in  his  own  name  to  the 
plaintiff,  the  other  four  persons  are  liable  on  the  note  as  partners 
doing  business  under  the  name  of  T.* 

§  27.  Same;  services. —  Similar  to  this  class  of  cases  is  the 
class  w^here  the  dealing  is  not  in  goods  or  manufactures,  but 
is  in  rendering  services  requiring  the  use  of  a  capi  tal  and  the 
possibility  of  a  loss;  here  a  joint  contribution  of  capital  and 
agreement  to  share  profit  and  loss  creates  a  partnership. 

iDuryea  v.  Whitcomb,  31  Vt.  strong  presumptive  evidence  of  a 
395.  partnership,  but  conclusive  of  it. 

2  Mealier  v.  Cox,  37  Ala.  201.  *  Morse  v.  Richmond,    97  111.    303 

3  Scott  V.    Campbell,  30  Ala.  738.     (affirming  6  III.  App.  166). 

The  case  seems  also  to  hold    that        ^  Mohawk  Nat.  Bank  v.  Van  Slyck, 
sharing  profit  and  loss  is  not  merely    29  Hun.  188. 
Vol.  1  —  3  33 


§  28.  NATURE  AND  FORllATION. 

Thus,  where  M.,  owning  a  contract  to  carry  the  mails,  sold  half 
of  it  to  C.  and  they  agreed  to  carry  together,  sharing  profit  and  loss, 
it  is  a  partnership  and  not  an  emplo3'ment.'  So  of  two  contractors 
to  build  a  railroad,  sharing  profit  and  loss,  they  are  partners;  hence 
one  alone  can  swear  to  a  chattel  mortgage  for  both.*  So  of  a  con- 
tract between  two  parties  to  share  profits  and  losses  on  their 
contracts  with  towns  to  furnish  recruits.*  So  of  a  contract  to 
prosecute  a  voyage,  each  giving  his  time  and  services,  sharing  the 
freights  earned  and  dividing  profits  and  losses;  therefore  the  freight 
earned  cannot  be  garnished  in  an  action  against  one  alone.*  Where 
two  firms  agree  to  pack  pork  on  joint  account  for  one  season,  shar- 
ing profit  and  loss,  it  was  held  to  be  a  partnership  inter  se,  though 
one  firm  alone  had  control  of  and  could  sell  the  product;  hence 
each  firm  can  require  the  assets  to  be  applied  to  the  debts.*  Where 
one  party  agreed  to  furnish  a  horse  and  mail-cart  and  the  other  pay 
him  a  stipulated  annual  sum  for  them,  but  expenses  for  repairing 
and  losses  of  packages  and  receipts  are  to  be  divided,  it  is  a  partner- 
ship.* 

§  28.  When  one  contributes  whole  capital. —  If  one  person 
is  to  furnish  the  property,  or  the  money  with  which  to  pro- 
cure it,  and  the  other  is  to  give  his  services  in  disposing  of 
it  under  an  agreement  by  which  they  are  to  divide  profit 
and  loss,  it  is  a  partnership  inter  se,  for  a  sharing  of  loss  is 
generally  inconsistent  with  a  mere  employment. '^ 

Thus  a  contract  by  which  K.  was  to  furnish  a  stock  of  goods  and 
keep  it  up,  it  to  remain  his  property,  and  N.  was  to  sell  them,  pay- 
ing over  all  cash  each  day,  and  drawing  $50  per  month,  and  at  the 

iCole  V.  Moxley,  12  W.  Va.  730.  'Pawsey  v.  Armstrong,  18  Ch.  D. 

2  Belknap  v.  Wendell,  1  Foster  (21  698  (doubted  in  Walker  v.  Hirsch,  27 
N.  H.),  175.  id.    460);    Emanuel  v.    Draugliu,  14 

3  Marsh  v.  Russell,  66  N.  Y.  288.         Ala.  303;  Couch  v.  Woodruff,  03  Ala. 
^Bulfinchu.Winchenbach,  3Allen,     466;  Clark  v.    Gridley,  49  Cal.  105; 

161.  Pierce  v.  Shippee,  90  111.  371 ;  Kuhn 

5  Meador  v.  Hughes,  14  Bush,  652,  v.  Newman,  49  Iowa,  424 ;  Getchell 
and  Brett  v.  Beckwith,  3  Jur.  N.  S.  v.  Foster,  106  Mass.  42;  Brownlee  v. 
31,  of  two  underwriters  agreeing  to  Allen,  21  Mo.  123;  Mulhall  r.  Cheat- 
share  profit  and  loss  of  their  busi-  ham,  1  Mo.  App.  476 ;  Tyler  v.  Scott, 
nesses;  s.  P.  Shubrick  v.  Fisher,  2  45  Vt..  261;  Sprout  v.  Crowley,  30 
Desaus.  148.  Wis.  187. 

6  Green  v.  Beesley,  2  Bing.  N.  Gas. 
108. 

84 


TESTS  OF  A  Partnership.  §  2j>. 

end  of  the  term  N.  is  stand  half  the  losses  and  take  half  the  profits 
in  merchandise  on  hand,  was  held  a  partnership  as  being  the  usual 
case  of  one  furnishing  the  goods,  the  other  his  time,  and  dividing 
profit  and  loss,  except  that  the  goods  remain  K/s  property,  which 
means  only  that  they  shall  belong  to  him  until  N.  acquires  an  in- 
terest. Hence,  K.  cannot  replevy  from  N.,  nor  can  he  show  exclu- 
sive title  by  proving  that  there  were  no  profits,  for  such  evidence 
would  require  an  accounting  in  a  law  case.' 

So  if  P.  furnishes  S.  money  to  buy  corn,  S,  to  pay  all  expenses 
of  shipment  and  sale,  reimburse  to  P.  the  cost,  gain  and  loss  to  be 
equally  divided,  S.  buying  in  his  own  name,  this  is  a  partnership;' 
or  where  A.  furnishes  B.  money  to  buy  tobacco  on  joint  account, 
B.  to  buy,  prize  and  sell  the  tobacco,  profit  and  loss  to  be  divided. 
This  is  a  partnership.^ 

§  2\).  Sharing  profit  and  loss  when  not  a  partnership. — 

But  an  agree nieiifc  to  share  profit  and.  loss  does  not  abso- 
lutely constitute  a  partnership  as  a  conclusion  of  law.  If 
other  circumstances  show  that  no  partnership  was  intended 
or  created  they  will  control.^  A  conspicuous  example  of 
this  is  whqre  a  partner  agrees  to  divide  the  profit  and  loss 
or  profit  of  his  share  with  a  third  person,  thus  forming  a 
subordinate  partnership.  The  sub-partner,  although  he 
gains  or  loses  as  the  principal  firm  does,  is  neither  their 
partner  nor  liable  to  their  creditors  as  such.  This  will  be 
treated  hereafter  under  Sub-partnerships. 

An  arrangement  by  which  one  person  buys  and  ships  goods  for  a 
firm  in  another  city,  with  their  funds,  profit  and  loss  to  be  divided, 
and  each  shipment  to  be  a  distinct  venture,  was  held  not  a  part- 
nership inter  se,  and  therefore  the  firm  could  sue  on  a  policy  with- 
out prejudice  from  the  acts  or  order  of  the  other,  who  had  attempted 

1  Kuhn  V.  Newman,  49  Iowa,  424 ;  v.  Hirsch,  27  Ch.  D.  460 ;  Noakes  v. 

S.  P.  Getchell  v.  Foster,  106  Mass.  42.  Barlow,  26  L.  T.  N.  S.  36 ;  Chaffraix 

2Pierce  V.  Shippee,  90  111.  371.  v.  Lafitte,   30  La.    An.    Part  I,    631, 

3  Clarke  v.  Ware,  8  Ky.  Law  Rep.  supra;  Dwinel  v.  Stone,  30  Me.  384; 
438.                                 ,  Smith  v.  Wright,  5  Sandf.  113,  but 

4  Bullen  V.  Sliarp,  L.  R.  1  C.  P.  86  this  point  was  shaken  on  the  affirm- 
{supra,  ^  21) ;  Kilshaw  v.  Jukes,  3  Best  ance  of  the  case  in  4  Abb.  App.  Dec. 
&  Smith,  847  [supra,  §  20) ;  Ex  parte  274. 

Delhasse,  7  Ch.  D.  511,  521 ;  Walker 

85 


§  20.  NATURE  AND  FORMATION. 

to  cancel  the  policy.'  So  where  A.  furnished  hides  to  B.,  to  be  made 
into  leather  and  returned  to  A.,  B.  to  receive  a  certain  sura  per 
pound,  and  profit  and  loss  to  be  divided,  this  is  not  a  partnership, 
and  hence  B.'s  sale  of  the  leather  to  a  third  person  gave  him  no 
title  as  against  A.'  So  where  two  firms,  A.  &  B.  and  C.  &  D.,  agree 
with  each  other  to  furnish  S.  with  a  certain  amount  of  wool  in 
certain  proportions,  agreeing  among  themselves  to  divide  profit  and 
loss,  the}' were  held  not  to  be  partners,  and  therefore  could  not  join 
in  action  against  S.  for  the  proceeds.'  Where  W.  agreed  with  M., 
B.  &  Co.  to  buy  timber  land,  cut  the  timber  and  put  it  on  the  cars, 
M.,  B.  &  Co.  to  sell  the  lumber,  and  after  paying  W.  the  cost  and 
$4.50  per  thousand  feet,  the  net  proceeds,  deducting  further  ex- 
penses, were  to  be  divided  and  losses^  were  to  be  divided,  it  was  held 
that  the  parties  are  not  taxable  as  a  firm  on  the  lumber.  M,,  B.  & 
Co.  had  no  control  of  it  before  shipment  and  W.  none  after.* 

Where  plaintiff  was  to  cultivate  defendant's  farm,  each  to  pay 
half  the  expenses  and  divide  the  profits  equally,  a  charge  to  the 
jury  that  they  were  partners  was  held  erroneous.  They  are  not 
necessarily  partners,  but  were  probably  mere  tenants  in  common 
in  the  crop." 

A.  and  B.,  buyers  of  cattle  each  on  his  own  account,  for  ship- 
ment, to  avoid  conflict  and  rivalry  agree  to  buy  each  for  himself 
as  before,  but  that  each  should  have  half  the  profits  and  pay  half 
the  losses  on  every  shipment  of  the  other.  This  is  not  a  partner- 
ship.* 

Where  plaintiff  by  contract  was-to  share  in  profits  and  losses  of 
defendant's  business  for  three  years  in  the  proportion  of  seventeen 

1  Marsh  v.  Northwestern  Natl.  Ins.  agreed  to  give  H.  one-third  of  his  net 
Co.  3  Biss.  351.  profits  for  a  year,  A.  to  bear  one- 
2Fawcett  v.  Osborn,  33  111.  411.    It  third  the  losses,  and  to  attend  to  the 
is    not    certain    whether  tlie    court  business,  but  B.  to  have  entire   con- 
ruled  there  was  no  partnership,  the  trol.      The  object   of   this   contract 
question  being  as  to  the  title  of  the  does  not  appear.     The  court  say  that 
goods.     See  the   earlier  case  of  the  mere     participation     in    profit   and 
same  partnership.     Stevens  v.  Fau-  loss  does  not  necessarily  constitute  a 
cet,  24  111.  4S3.  partnership  inter  se,  but  that  it  is  a 
3Snell  V.  De  Land,  43  III.  323.  question  of  intention,  each  case  to 
*  Monroe  V.  Greenhoe,  54  Mich.  9.  be  determined  on  its  own   facts,  and 
5  Donnell  v.  Harshe,  67  Mo.  170 ;  s.  that  the  above  contract  is  not  conclu- 
P.  Musser  V.  Brink,  68  Mo.  242 ;  80  id.  sive,   McDonald   v.   Matuey,  82  Mo. 
350;  Ashby  v.  Shaw,  82  Mo.  76.     la  358. 

one  case  B,,  the  owner  of  a  bank,        6  Clifton  v.  Howard,  89  Mo.  193. 

36 


TESTS  OF  A  PARTNERSHIP.  §  29. 

and  one-lialf  per  cent.,  and  to  act  as  salesman,  but  not  to  have  the 
right  of  partnership  in  the  firm,  and  the  capital  then  standing  to 
his  credit  on  the  books  was  to  remain  in  at  seven  per  cent.,  but  he 
could  draw  an  annual  amount  for  support,  it  was  held  that  the 
parties  were  not  partners  inter  se,  and  therefore  that  plaintiff  was 
not  chargeable  with  interest  on  losses  of  the  first  year,  but  that  his 
percentage  related  to  the  result  of  the  entire  term  and  not  of 
each  year.' 

Where  E.  sold  goods  to  T.  B.  &  Co.  and  sues  them,  and  also  Y.  and 
X.,  claiming  the  latter  to  be  partners  of  T.  B.  &  Co.,  the  relation 
between  the  defendants  being  created  by  a  writing,  whereby  V.  and 
X.,  who  lived  elsewhere,  were  to  pay  half  the  rent  of  a  store  to  be 
hired  by  T.  B.  &  Co.,  the  latter  to  sell  goods  sent  them  by  V.  and 
X.,  paying  all  expenses  and  to  sell  no  other  goods,  and  to  receive  a 
coDimission  equal  to  one-half  the  net  profits  on  sales,  and  pay  one- 
half  of  any  loss  that  might  occur,  V.  and  X.  are  not  partners  of 
T.  B.  &  Co.  A  commission  measured  by  a  share  of  the  profits  does 
not  create  a  partnership,  and  sharing  losses  does  not  mean  a  loss 
by  fall  of  prices,  which  would  probably  make  them  partners,  but  a 
loss  which  might  arise  in  the  sale  and  disposition  of  the  goods;  as 
a  factor  might  agree  to  be  liable  for  losses  by  robbery,  fire  or  bad 
debts.' 

A  contract  to  buy  certain  land,  erect  a  mill  on  it,  put  in  ma- 
chinery and  hold  the  property  jointly,  sharing  the  expense  equally 
and  also  the  profits,  whether  arising  from  sale  or  lease,  and  if  either 
paid  more  than  his  share  he  was  to  have  a  lien  for  repayment, 
constitutes  not  a  partnership  but  a  tenancy  in  common,  for  there 

1  Osbrey  v.  Reimer,  51  N.  Y.  630  fendant,  that  they  were  to  share 
(affirming  s.  c.  49  Barb.  265.)  equally  in    profits    and  losses,    but 

2  Ed  wards  t).  Tracy,  62  Pa.  St.  374.  whether  they  were  partners  inter  se 
It  is  further  said  on  p.  380,  that  con-  does  not  appear.  The  court  said 
ceding  T.  B.  &  Co.  would  be  liable  "  sharing  the  profits  and  loss  of  the 
as  partners  for  purchases  by  V.  and  business  is  not  decisive  as  between 
X.,  the  correlative  proposition  would  the  parties,  as  there  may  have  been 
hold  good,  that  V.  and  X.  would  be  merely  an  arrangement  with  a  view 
liable  for  purchases  by  T.  B.  &  Co.  to  compensation  for  services,"  and 
In  Morgan  v.  Stearns,  41  Vt.  398,  the  the  referee's  rejection  of  a  claim 
facts  are  not  given ;  the  referee  had  for  a  share  of  certain  expenses  was 
reported  that  a  '  '•  sort  of  partnership  "  affirmed. 

existed  between  the  plaintiff  and  de- 

37 


§  30.  NATURE  AND  FORMATION. 

was  no  agreement  for  partnersliip,  or  name,  or  capital,  or  business 
contemplated,  or  right  to  sell.' 

In  one  case  A.  furnished  cigars  to  B.  to  sell,  and  a  horse  and 
wagon,  each  to  bear  half  the  expenses  and  each  half  the  losses  on 
sales,  the  profits  to  be  divided  equally.  The  court  held  that  an 
action  at  law  between  the  parties  lay  because  there  was  no  partner- 
ship, but  an  arrangement  analogous  to  a  case  of  merchant  and  factor. 
The  decision  was  put  on  the  ground  that  had  A.  died  there  was  no 
community  of  interest  in  the  horse  and  wagon  and  cigars  which 
would  have  survived  to  B.,  nor  power  in  B.  to  incur  liability, 
make  contracts,  manage  the  business  or  disoose  of  the  whole 
stock  at  once.' 

n.    SHARING    PROFITS,    NOTHING    BEING    SAID    AS    TO    LOSSES. 

§  30.  It  will  be  remembered  that  our  definition  of  part- 
nership, unlike  that  of  the  Roman  law,  is  silent  as  to  losses. 
A  contract  to  share  profits,  nothing  being  said  about 
losses,  furnishes  by  far  the  largest  and  most  perplexing  class 
of  cases,  and  may  or  may  not  constitute  a  partnership. 
Many  authorities  have  ruled  that  as  net  profits  ex  vi  termini 
import  deduction  for  losses,  this  class  of  cases  belongs  to 
the  class  just  considered,  and  therefore  constitutes  a  part- 
nership. But  in  this  connection,  at  least,  there  is  no  differ- 
ence between  profits  and  net  profits,  and  the  confusion  of 
the  two  classes  is  productive  of  error. 

If  there  is  a  community  of  profits,  a  partnership  follows. 
Community  of  profits  means  a  proprietorship  in  them  as  dis- 
tinguished from  a  personal  claim  upon  the  other  associate; 
in  other  words,  a  property  right  in  them  from  the  start  in 
one  associate  as  much  as  in  the  other.  But  the  saying  that 
one  who  takes  part  of  the  profits  as  profits  is  a  partner  has 
now  gone  out  of  vogue,  having  been  found  to  be  unservice- 
able as  a  test,  and  amounting  merely  to  a  change  of  expres- 

1  Farrand  v.  Gleason,  5G  Vt.    633.     was  a  sharing  of  profit  and  loss  but 
In   Chapline  v.   Conant,  3    W.    Va.     no  partnership. 
507,  abstracted  above  (§  23),   there        2  Newberger  v.  Fields,  23  Mo.  App. 

631.    , 
38 


TESTS  OF  A  PARTNERSHIP.  §  31. 

sion.^  So  a  former  difference  between  taking  a  share  of  the 
profits  and  an  amount  measured  by  a  share  of  profits  is 
no  longer  regarded.  The  latter  expression  may  show  an 
intention  not  to  be  a  partner,  but  the  former  does  not 
show  the  contrary,  as  will  be  seen  in  numerous  instances 
hereafter  cited.  So  an  old  verbal  difference  between  gross 
and  net  profits  must  now  be  considered  as  unsubstantial, 
as  there  are  numerous  cases  where  sharing  net  profits  does 
not  constitute  partnership. 

The  cases  on  this  subject  are  like  cases  on  the  construction 
of  wills,  as  various  as  the  facts  of  each  vary;  and  in  deter- 
mining the  intention  or  the  nature  of  the  relation,  considera- 
tion is  to  be  had,  among  other  things,  to  the  objects  and 
purposes  of  the  parties;  the  powers  granted  to  or  withheld 
from  each;  the  extent  of  their  interests;  their  former  rela- 
tions or  occupations;  the  extent  and  nature  of  their  interest 
in  the  capital  stock.  And  though  the  cases  are  not  all  rec- 
oncilable, they  may  be  classified  so  as  to  assist  in  the  determi- 
nation of  future  questions. 

§  31.  With  joint  capital. —  In  this  class  of  cases,  if  there 
is  a  joint  ownership  in  the  capital  stock,  the  conclusion  is 
irresistible  that  there  is  a  communion  of  interest  in  the 
profits,  and  not  a  portion  of  them,  as  compensation,  for 
each  has  as  much  right  as  the  other,  and  hence  that  a  part- 
nership results;  but  even  here  care  must  be  taken  not  to 
confuse  a  contribution  to  capital  with  a  contribution  of  the 
use  of  property  on  a  share  of  profits  or  income  as  rent, 
which  may  take  place  although  the  parties  both  own  the  • 
property  as  tenants  in  common;  as,  for  example,  where  two 
persons  bought  a  circus  and  one  contracted  with  the  other 
to  run  it  and  divide  the  income.  In  the  case  from  which 
this  example  is  taken  there  was  held  to  be  no  partnershij"), 
on  the  ground  that  dividing  an  income  does  not  make  a 
partnership,  but  the  same  would  have  been  true  had  half  the 
profits  been  payable  as  rent.^ 

1  Bromley  v.  Elliot,  38  N.  H.  287,     Beecher  v.  Bush,   45  Mich.  188,  195 
304;  and  see  Parker  v,  Canfield,  37    (40  Am.  Rep.  465). 
Conn.   250,    267  (9  Am.    Rep.    317) ;        2  Quackenbush  v.  Sawyer,  54  CaL 

39 


§  32.  NATURE  AND  FORMATION. 

§  32.  Illnstrations  of  true  partnerships. —  W.  contributed 
a  steamboat  to  T.,  to  be  pat  into  line,  and  T.  contributed  the  good 
■will  of  an  established  line  and  his  care,  skill  and  expenses,  T.  to 
have  the  management  and  the  selection  of  the  officers  and  crew; 
but  W.  was  to  appoint  the  clerk  and -disbursing  officer,  and  the  re- 
ceipts were  to  be  applied  in  the  following  order:  Expenses,  insur- 
ance $6,000,  to  W.;  $300  to  T.;  balance  to  be  equally  divided. 
This  was  held  to  be  a  true  partnership  and  not  a  charter-party,  for 
each  contributed  to  the  enterprise  and  there  is  a  communion  of 
profits.^ 

Persons  who  by  agreement  jointly  buy  a  tract  of  land  in  order  to 
jointly  sell  it  and  share  the  profits  were  held  to  be  purchasers  inter 
se  for  the  transaction  and  to  owe  to  each  other  the  duties  of  that 
relation.* 

There  is  considerable  difficulty  in  reconciling  some  of  the  cases 
under  this  section  and  those  which  the  court  decided  under  §  63. 
Where  parties  bu,y  land  jointly  to  farm  it  and  sell  again,  plaint- 
iff to  farm  it,  defendant  to  ship  and  sell  the  produce,  expenses  to  be 
shared  equally  and  net  profits  divided,  it  is  a  partnership  iiiter  se, 
and  one  cannot  sue  the  other  at  law  for  his  share.'  Where  two 
persons  put  in  $3,000  each  and  one  his  personal  services,  and  they 
are  to  divide  the  net  profits,  it  was  said  to  be  a  partnership,  at  least 
as  to  third  persons.''  So  if  each  contribute  a  stock  of  merchandise 
and  are  to  share  equally  the  expenses  and  profits,  though  one  is  to 
pass  for  proprietor  and  the  other  for  salesman. ° 

Where  one  is  to  furnish  a  mill  and  the  other  the  hands  to  work  it, 
the  latter  to  be  superintendent,  the  profits  to  be  divided,  it  was  held 
to  be  a  partnership  on  the  ground  that  the  latter  in  furnishing  the 
hands  furnished  part  of  the  capital  stock,  for  that  consists  of  the 
mill  and  the  hands.*     One  who  receives  money  from  another  to  in- 

439 ;  and  see  Chapman  v.  Eames,  67  ^  Perry  v.  Butt,  14  Ga.  G99. 

Me.  452,  5  Marks  v.   Stein,  11  La.  Ann.  509; 

1  Ward  V.  Thompson,  22  How.  330,  and  see  Everitt  v.  Cliapmau,  G  Conn, 

aff'g  Newb.  95.  347. 

-  Yeoman  v.  Lasley,  40  Oh.  St.  190 ;  g  Sankey  v.  Columbus  Iron  Works, 

Hulett  V.  Fairbanks,  40  id.  233;  Can-  44  Ga.  238,     So  if  one  furnishes  the 

ada  i;.  Barksdalo,  76  Va.  899;  Brink-  mill  and  the  other  the  timber;   for 

ley  u.  Harkins,  48  Tex.  225;  Russell  there    is   a   community  of    interest 

V.    Grocn,    10  Conn.  269,  of  lumber  in    the    sawed    lumber.       Jones    v. 

so  bought.  McMichael,  12  Rich,  L,  176. 


3  Fisher  v.  Sweet,  67  Cal,  228. 


40 


TESTS  OF  A  PARTNERSHIP.  g  32. 

vest  on  real  estate  in  joint  account  was  called  a  partner,  since  the 
land  is  held  for  both.'  And  so  where  G.  represented  that  he  knew 
where  a  railroad  was  to  run,  but  had  no  money,  and  R.  furnished 
the  money,  G.  to  buy  land  to  be  held  by  a  third  person  in  trust 
for  both,  and  both  to  have  an  equal  interest  in  them,  this  is  a  part- 
nership in  the  lands,  so  that  a  loss  by  depreciation,  the  railroad  not 
having  been  made  there,  must  be  equally  borne," 

Where  proprietors  of  a  factory  associate  themselves  to  manufact- 
ure a  commodity,  assigning  to  each  specific  departments  of  duty  ^nd 
providing  that  each  shall  receive  a  stated  salary,  but  saying  noth- 
ing about  either  profit  or  loss,  it  is  a  partnership  inter  se.^ 

An  a2:reement  between  A.  and  B.  that  B.  should  furnish  a 
vessel  and  cargo,  and  A.  should  take  charge  and  prosecute  avoyage 
at  monthly  wages  of  ^50  and  one-fifth  interest  in  the  voyage  and 
should  furnish  $1,000,  A.  acting  on  letters  of  instruction  from  B., 
which  stated  "  for  your  services  you  are  to  receive  $50  per  month 
and  one-fifth  interest  in  the  cargo,"  was  held  to  be  a  partnership 
and  not  an  employment,  for  there  was  a  joint  interest  in  the  capital 
invested  in  a  common  enterprise.  There  was  also  additional  evi- 
dence that  B.  kept  the  accounts  of  all  the  voyages  in  a  continuous 
partnership  account,  which  A.  knew,  which  tended  to  show  that  the 
interest  in  the  profits  was  a  common  interest.  Hence,  it  was  held 
that  A.  could  not  sue  B.  at  law.* 

So  an  agreement  to  cut  and  store  ice  for  sale  and  divide  the  prof- 
its, deducting  expenses,  constitutes  a  partnership  inter  se,  so  that  a 
sale  by  some  of  the  partners  is  valid.'  And  agents  of  a  company 
paid  by  a  percentage  on  its  sales,  who  agree  to  divide  the  percent- 
age between  them  and  make  purchases  in  their  joint  names,  and 
who  paid  bills  rendered  them  in  the  joint  name,  are  partners  infer 
se,  so  that  a  suit  for  an  accounting  by  one  against  the  other  will 

lie.» 

By  an  agreement  between  W.  and  R.,  W.  was  to  carry  on  a 
business  in  the  name  of  the  X.  company,  furnish  a  certain  capital 
and  let  the  company  have  the  use  of  his  coal  land,  paying  him  a 
certain  rate  per  ton  for  coal  mined  and  interest  on  the  capital  of 

iMillu.  Sheibly,  68  Ga.  556.  firmed   in  Barrett  v.  Swanu,  17  id. 

2  Richards    v.  Grinnell,   63    Iowa,     180  (32  Am.  Dec.  223). 
44;  50  Am.  Rep.  727.  •»  Julio  v.  Ingalls,  1  Allen,  41. 

3Doak  V.  Swarin,  8  Me.  170;  af-        5Staplesu  Sprague,  75  Me.  458. 

6Heise  v.  Bartli,  40  Md.  259. 
41 


§  32.  NATURE  AND  FORMATION. 

the  company,  and  R.  was  to  manage  the  business  and  "  in  payment 
for  his  services "  receive  a  certain  annual  sum  and  half  the  net 
profits  and  Jet  to  the  company  his  apparatus,  trade-marks  and  pat- 
ents. Annual  settlements  were  to  be  made  and  all  sums  due  R. 
paid  or  credited  to  him  on  interest.  This  was  held  to  be  a  partner- 
ship infer  se  and  not  an  agency,  and  therefore  R.  could  not  sue  W. 
at  law  for  excluding  him  from  the  management  and  refusal  to 
make  settlements  on  business  continued  by  W.  with  R.'s  tools,  ap- 
paratus, etc' 

An  oral  agreement  between  A.  and  B.  that  A.  should  contribute 
his  inchoate  interest  in  an  unpatented  machine,  and  B.  money  to 
obtain  a  patent,  and  both  their  services  to  make  it  remunerative, 
is  an  agreement  of  partnership  and  not  for  the  sale  of  goods  under 
the  statute  of  frauds,  and  the  patent  when  obtained  is  partnership 
property,  being  the  result  of  joint  contribution,  in  whosesoever  name 
it  is  taken  out.' 

Where  B.  was  to  furnish  marble  and  A.  to  pay  him  half  the  cost 
of  it,  B.  to  board  A.,  and  both  to  contribute  skill  and  labor  in 
manufacturing  it,  and  the  proceeds  and  avails  to  be  equally  divided, 
they  are  partners  inter  se  and  as  to  third  persons,  and  both  liable 
for  a  purchase  by  one  of  them  from  a  seller  not  aware  of  the  ex- 
istence of  the  firm.^ 

M.  and  H.  were  to  purchase  pork  on  joint  account  and  in  their 
joint  names,  and  M.  is  to  furnish  all  money  necessary  in  excess  of 
advances  obtainable  on  the  pork  and  is  to  receive  back  his  advances 
with  interest,  the  balance  to  be  divided;  this  is  a  partnership  inter 
se  and  not  a  loan;  hence  M.  has  a  priority  in  the  assets  over  H.'a 
individual  creditors.* 

Under  a  contract  between  W.  and  B.,  by  which  W.  leased  to  B. 
his  factory  with  tools  and  machinery,  and  B.  agreed  to  use  it  so  as 
to  afford  the  greatest  profit  to  the  parties,  manufacture,  give  all 
his  time  to  it,  furnish  all  necessary  capital  and  labor  and  keep 
books  open  to  W.'s  inspection,  take  an  account  at  stated  periods  and 
divide  profits  after  payment  of  expenses,  B.  to  have  also  a  salary 
and  interest  on  any  capital  over  $20,000,  the  court  held  a  suit  for 
an  accounting  and  dissolution  was  maintainable,  the  parties  being 

1  Ryder  v.  Wilcox,  103  Mass.  24.  s  Griffith  v.  Buffum,  23  Vt.  181 ;  54 

2Someiby    v.    Buutin,    118    Mass.     Am.  Dec.  64. 
279.  <  Miller  v.  Price,  20  Wis.  117. 

42 


TESTS  OF  A  PARTNERSHIP.  §  33. 

partners  because  there  was  a  common  interest  in  the  capital  and 
profits.' 

An  agreement  to  buy  an  interest  in  a  business  with  a  view  to 
carry  it  on  together,  sharing  profits,  is  an  agreement  of  partner- 
ship.' 

§  33.  illustrations  of  partiiersliip  as  to  third  persons.' 

A.  &  B.  having  a  contract  to  build  a  railroad  sold  an  interest  in  it 
to  C.  &  D.,  the  latter  to  be  equally  interested  in  the  profits,  bene- 
fits and  advantages  of  the  contract,  it  being  the  intention  to  make 
them  in  all  respects  equal  with  A.  &  B.,  the  business  to  be  in  the 
name  of  A.  &  B.  This  is  a  partnership  inter  se  and  as  to  third 
persons,  because  it  conveys  an  interest  in  the  business  itself  and 
not  in  the  profits,  as  compensation  or  as  interest  on  a  loan,  and  C. 
&  D.  are  liable  on  a  note  for  supplies  signed  A.  &  B.^ 

Tyler,  owning  a  tin  shop,  agreed  with  D.,  a  plumber,  to  work 
together,  Tyler  to  have  ten  per  cent,  of  the  profits  on  his  stock 
and  the  balance  of  profits  to  be  equally  divided,  the  concern  being 
continued  in  Tyler's  name;  annual  balances  being  struck  and  D.'s 
share  being  carried  to  his  credit;  both  giving  their  entire  time. 
This  was  held  to  be  a  partnership,  as  being  an  agreement  to  share 
profit  and  loss.  It  was  certainly  a  joint  business,  and,  hence,  in- 
ferentially  an  agreement  to  share  profit  and  loss.' 

Where  D.  &  Co.  were  to  furnish  a  stock  of  goods  and  shop  fixtures 
valued  at  $4,000,  and  B.  was  to  manage  the  business,  pay  interest 
on  half  the  valuation  and  pay  rent  for  the  store,  and  divide  the 
profits  equally,  this  was  held  to  constitute  a  partnership  as  to  third 
persons,  although  there  was  a  prior  understanding  that  B.'s  share 
of  profits  was  in  lieu  of  a  salary." 

Where  L.  was  owner  and  publisher  of  the  "  Commercial  Cata- 
logue," and  being  about  to  begin  the  canvass  for  its  third  number, 
A.,  a  tailor,  agreed  to  pay  and  paid  to  the  business  $iOO,  L.  to  give 
A.  the  orders  he  received,  and  the  profits,  deducting  all  expenses, 
to  be  shared  equally.     They  are  partners  as  to  third  persons.'' 

1  "Wood  V.  Beath.  23  Wis.  254.  ^  Many  of   these  are  undoubtedly 

2Goddard  v.   Pratt,   16   Pick.   413,  true  partnerships,  but  I  classify  them 

426;  Pinkerton  v.  Ross,  33  Up.  Can.  according  to  the  facts. 

Q.  B.  508;  Botham  v.  Keefer,  2  Ont.  *  Voorhees  v.  Jones,  29  N.  J.  L.  270. 

App.   595;  PJumer  v.  Lord,  7  Allen,  5 Tyler  v.  Scott,  45  Vt.  201. 

481 ;  Tyler  v.  Scott,  45  Vt.  261 ;  Voor-  6  Brigham  v.  Clark,  lOO  Mass.  430. 

hees  V.  Jones,  29  N.  J.  L.  270.  '^Peltee  v.  Appleton,  114  Mass.  114. 

43 


§  33.  NATURE  AND  FORMATION, 

H.  &  L.,  a  ruannfacturing  firm,  agreed  with  A.  &  B.  to  form  a 
joint  stock  company  of  the  establishment  and  divide  the  capital 
among  the  four;  and,  as  A.  &  B.  advanced  money  for  immediate 
use,  it  was  agreed,  in  consideration  thereof,  that  they  should  share 
in  the  profits  from  that  date.  The  joint  stock  company  Avas  not 
organized  for  nine  months,  the  business  in  the  meantime  being  in 
the  name  of  H.  &  L.;  A.  &  B.,  who  were  non-residents,  not  inter- 
fering. A.  &  B.  were  held  to  be  partners,  and  liable  for  debts  in- 
curred thereafter,  for  they  shared  the  profits  as  profits.  Here  A. 
&  B.  each  put  in  $1,000.' 

A.  and  B.  each  agreed  to  contribute  distinct  stocks  of  goods,  B. 
to  carry  on  business  with  them  in  his  store  and  the  net  income  to 
be  divided.  This  is  a  partnership  as  to  third  persons  and  not  an 
employment,  because  B.  furnishes  the  store  and  adds  to  the  stock; 
hence  A.  is  liable  as  partner  for  the  price  of  goods  purchased  by 
B.,  although  the  secret  agreement  avoided  common  ownership  in 
the  stock  and  personal  liability  for  engagements.' 

A.  contributed  a  foundry  at  a  rental  and  furnished  the  capital; 
B.  contributed  his  services  and  the  use  of  his  patents,  agreeing  that 
at  the  close  an  account  should  be  taken  of  the  "joint  stock  and 
joint  liabilities,"  and  an  equal  division  of  profits  should  be  made. 
This  shows  an  intention  to  create  a  partnership  inter  se,  although 
the  word  partnership  was  nowhere  used;  but  no  word  denoting  an 
employment,  as  superintendent,  foreman,  etc.,  was  used.^ 

Three  partners  agreed  with  four  others  to  convey  a  half  interest 
in  the  business  to  the  latter  and  one-half  the  net  profits,  the  profits 
to  be  applied  to  pajnng  for  the  latter's  shares  of  capital,  and  at  the 
end  of  five  years  the  sellers  were  to  convey  to  the  buyers  an  eighth 
each,  that  is,  one-half  of  the  property  of  the  firm,  the  property  to 
remain  in  the  former  in  the  meantime.  This  creates  a  present 
partnership,  being  a  right  to  share  profits  and  to  use  the  capital 
with  an  inchoate  title  in  it.^ 

Where  one  hands  money  to  another  to  buy  corn,  not  as  a  loan 
but  for  half  the  corn,  the  other  to  sell  it  all  in  his  own  name  and 
return  the  money  and  half  the  profits,  it  was  held  to  be  a  partner- 
ship." 

1  Citizens' Bank  v.  Hine,  49  Conn.  <Vassar  v.  Camp,  14  Barb.  341; 
236.  affiriued  ou  other  grounds  in  11  N.  Y. 

2  Bromley  v.  Elliot,  38  N.  H.  287.      441. 

8  Van  Kuren  v.  Trenton  Locomo-        8  Wilkes  V.  Clark,  1  Dev.  L.  178. 

tive  &  Mach.  Mfg.  Co.  13  N.  J.  Eq.  303. 

44 


TESTS  OF  A  PARTNERSHIP.  §  33. 

A  contract  was  held  to  constitute  a  partnership /^f^r  se  and  as  to 
third  persons,  and  not  a  hiring,  where  A.,  B.  and  C.  agree  to  take 
charge  of  X.  and  Y.'s  logging  camps,  to  be  started  when  the  latter 
should  direct,  hire  men  to  run  them  and  cut  and  run  all  the  logs 
they  could  get  out  during  the  season,  X.  and  Y.  to  pay  all  stump- 
age  and  pay  for  all  hired  help,  teams,  supplies  and  expenses  in  get- 
ting the  logs  to  market;  X.  and  Y.  to  sell  the  logs,  and,  after 
deducting  money  paid  out,  the  balance  and  the  teams  and  supplies 
left  over  to  be  divided,  the  share  of  A.,  B.  and  C.  to  be  full  compen- 
sation for  their  work  and  labor.  The  title  to  the  property  was  in 
all  jointly  and  there  was  communion  of  profits,  for  the  teams  and 
supplies  were  to  be  divided.  The  power  reserved  in  X.  and  Y.  to 
sell  the  logs  does  not  destroy  the  legal  effect  of  the  contract,  and 
X.  and  Y.  are  liable  with  A.,  B.  and  C.  on  the  latter's  contracts  for 
supplies.' 

P.  and  L.  agreed  to  join  in  raising  a  sunken  steamer,  L.  to  fur- 
nish the  machinery  and  P.  the  labor,  money  and  other  appliances, 
L.  to  sell  the  material  saved  and  divide  proceeds  after  repaying  P. 
his  advances.  This  was  held  a  partnership  inter  se  and  as  to  third 
persons.** 

S.  was  appointed  sutler  of  a  regiment,  and  D.  agreed  with  him 
to  furnish  the  capital  and  procure  a  stock  of  goods  for  the  business, 
S.  to  carry  on  the  business,  and  the  profits,  after  repaying  D.'s  ad- 
vances, to  be  divided.  S.  carried  on  the  business  in  his  own  name, 
and  not  as  agent  of  D.,  and  was  held  liable  to  third  persons  as  part- 
ner for  subsequent  purchases,  because  his  interest  in  the  profits  is 
a  right  to  receive  and  retain  one-half  of  the  profits;  but  here  S.,  in 
contributing  the  appointment  of  the  ofl&ce,  certainly  contributed 
part  of  the  capital.' 

But  where  L.  had  a  contract  to  furnish  timber  for  a  United  States 
navy  yard,  and,  having  no  money,  it  was  agreed  that  plaintiff 
should  furnish  him  with  funds  and  he  should  go  to  Florida,  pur- 
chase, load  and  ship  timber,  consigning  it  to  the  plaintiff  for  deliv- 
ery, and  plaintiff  should  receive  the  money  from  the  United  States 
authorities,  and  the  profits  should  be  divided,  this  was  said  not  to  be  a 
partnership,  but  to  be  like  mariners  on  a  whaling  voyage  paid  from 
a  share  of  the  cargo,  or  freighters  dividing  the  profits  of  a  voyage." 

1  Upham  V.  Hewitt,  42  Wis.  85.  *  Rice  v.  Austin,  17  Mass.  197,  206. 

2Lyuch  V.  Thompson,  61  Miss.  354.     InCumpston  v.  McXair,  IWend.  457, 
*  Appleton  V.  Smith,  24  Wis.  331.        two    persons    jointly    owning    salt 

45 


§  35.  NATURE  AND  FORMATION. 

§34.  Where  one  funiislies  all  tlie  capital. —  Where  there 
is  no  joint  interest  in  the  capital,  the  intention  of  the  parties 
is  more  difficult  to  arrive  at,  and  there  is  a  proportionately 
greater  tendency  in  the  courts  to  disagree  and  to  decide  so 
as  to  avoid  a  hardship  rather  than  to  ascertain  and  apply  a 
logical  test. 

Thus,  if  A.  furnishes  B.  money  to  enable  him  to  conduct 
an  enterprise  or  prosecute  a  business,  and  B.  has  creditors 
whose  claims  have  arisen  independently  of  the  business,  if 
A.  is  not  a  partner,  the  goods  bought  by  B.  with  A.'s  money, 
being  B.'s,  are  liable  for  his  individual  debts;  but  if  A.  is  a 
partner,  B.'s  interest  in  the  goods  being  only  his  share  of 
surplus  after  payment  of  partnership  debts,  including  any 
balance  due  A.,  A.  is  protected  against  B.'s  individual  cred- 
itors. Hence  a  person  may  sometimes  prefer  to  be  a  partner 
rather  than  a  lender,  and  the  courts  may,  owing  to  the  hard- 
ship of  such  cases,  find  he  was  partner  on  insufficient  evi- 
dence. 

And  so,  if  A.  furnishes  all  the  money,  goods  or  other 
property,  and  B.  all  the  services,  on  a  division  of  profits,  on 
a  question  of  the  degree  of  fidelity  each  owes  the  other,  the 
courts  would  be  inclined  to  hold  them  to  be  partners,  and  in 
an  action  or  suit  by  one  against  the  other  to  obtain  his  share 
of  the  results,  if  relief  could  be  granted  nearly  equally  well 
in  a  court  of  law  or  in  chancery,  a  court  might  readily  sus- 
tain the  jurisdiction  by  finding  there  was  or  was  not  a  part- 
nership. These  and  other  readily  occurring  considerations 
account  for  and  render  probable  some  want  of  harmony  in 
the  authorities. 

§  35.  if  the  investment  is  on  joint  acconnt  it  is  a 

partnership.  Although  one  partner  has  furnished  all  the 
capital,  if  the  business  or  enterprise  appears  to  be  owned  by 
both  jointly,  a  communion  of  profits  as  partners  rather 
than  a  sharing  of  them  as  compensation  will  naturally  be 

agreed  that  one  should  take  it  to  name  of  hoth  to  defray  transporta- 
market,  sell,  and  apply  the  proceeds  tion  charges  was  held  to  bind  both, 
to  a  joint  debt.  This  was  held  a  This  would  surely  not  be  called  a 
partnership,  and  a  note  by  one  in  the    partnership  now. 

46 


TESTS  OF  A  PARTNERSHIP.  §  35. 

considered  to  result,  or,  iu  other  words,  both  are  principals. 
This  rule  is,  however,  imperfect,  since  the  difficulty  some- 
times arises  to  determine  whether  the  business  is  owned  by 
both,  and  since  joint  ownership  may  be  inferred  as  a  conse- 
quence quite  as  well  as  a  cause  of  sharing  profits  as  part- 
ners. The  general  rule  in  such  cases  of  doubt  is  that  the 
parties  are  to  be  treated  as  partners,  unless  the  contrary  is 
shown;  that  is,  they  will  be  supposed  to  have  desired  to  ob- 
tain the  benefit  of  a  partnership  and  to  share  the  chances 
together  where  they  have  omitted  to  show  a  contrary  in- 
tention.^ 

Thus,  Gray,  owning  a  factory,  contributed  it  at  a  rent  and 
agreed  to  supply  all  necessary  funds.  Greenliam  was  to  work  it, 
to  have  ''full  and  absolute  control,"  to  employ  and  dismiss  hands, 
and  was  not  to  enter  any  other  trade.  He  was  to  have  for  his 
"  management "  £150  per  annum  and  one-fifth  of  the  profits. 
Nothing  was  said  as  to  losses,  nor  was  the  word  "  partner  "  used 
in  the  contract.  Gray  discharged  Greenham  for  alleged  miscon- 
duct, claiming  he  was  an  employee  only.  They  were  held  to  be 
partners.  The  word  management  was  construed  not  to  show  a  re- 
lation of  master  and  servant,  but  to  relate  to  a  managing  partner. 
The  great  powers  of  control  and  the  use  of  a  firm  name  were  de- 
cisive. The  cases  of  hiring  were  called  exceptional  in  the  sense 
that  a  contract  to  share  profits  is  presumably  one  of  partnership.^ 
And  where  E.  was  to  furnish  a  stock  of  merchandise  and  put  it  in 
H.'s  salesroom,  H.  to  sell  at  retail,  pay  E.  all  proceeds  and  be  re- 
sponsible for  the  safety  of  the  goods,  all  the  expenses  to  be  paid 
out  of  the  profits  and  the  net  income  equally  divided,  this  was 
held  to  be  a  true  partnership  because  there  was  a  communion  ot 
profits.* 

Where  A.,  B.  and  C.  made  an  agreement  for  an  adventure  in 
Texas,  A.  and  B.  to  furnish  the  capital,  B,  and  C.  to  go  to  Texas 
with  the  goods,  C.  to  travel  about  there  and  sell,  B.  to  receive  a 

1  Per  Jessel,  M.  R.   in  Pooley  v.  359 ;  Cothran  v.  Marmaduke,  60  Tex. 

Driver,  5  Ch.  D.   458;  Greenham  v.  370. 

Gray,   4  Irish  Com.    L.    501;  Lock-  2  Greenham  r.  Gray,  4  Irish  Com. 

wood   V.  Doane,  107  111.  285;  Ryder  L.  501. 

V.    Wilcox,    103    Mass.    24,    27 ;  Ee  3  Bigelow  v.  Eliot,  1  Cliff.  28. 
Francis,  2  Sawy.  286 ;  7  Bankr.  Reg. 

47 


§  35.  NATURE  AND  FORMATION. 

monthly  sum  for  services,  and  C.  one-fifth  of  the  profits  for  serv- 
ices and  four-fifths  to  be  divided  between  A,  and  B.,  this  was 
held  to  be  a  partnership  inter  se,  although  nothing  is  said  about 
sharing  losses.  All  are  principals,  although  C.  is  paid  for  services; 
yet  so  is  B.,  who  is  confessedly  a  partner.' 

Where  R.  furnishes  L.  with  $25i,  which  L.  agrees  to  invest  in 
cattle,  feed  them,  and  in  a  3^ear  sell  them,  the  cattle  to  belong  to 
R.  until  the  money  is  repaid,  profits  to  be  equall}''  divided;  L.  guar- 
antying that  R.'s  profits  shall  not  be  less  than  twenty  per  cent., 
this  was  held  to  be  a  true  partnei'ship  in  the  profits  and  not  a 
cover  for  a  usurious  transaction,  and  a  suit  for  an  accounting  lies 
between  them.* 

If  one  furnishes  funds  and  the  other  services  and  skill  for  a  trade 
or  operation,  profits  to  be  shared,  both  are  liable  for  the  price  of 
goods  sold  to  be  used  in  the  business.^  Where,  by  an  agreement 
between  L.  and  R.,  R.  was  to  furnish  the  capital  and  W.  to  go 
to  Virginia  to  plant  and  buy  oysters  to  be  sent  in  R.'s  vessels  to 
R.  in  New  York,  each  to  have  half  the  net  profits,  they  are  partners 
infer  se,  and  R.  can  maintain  a  suit  for  an  accounting  against  W.^ 
Where  A.  contributes  services  in  collecting  and  buying  hogs  and 
cattle,  and  B.  furnishes  the  capital,  profits  to  be  divided,  nothing 
being  said  about  losses,  there  is  a  community  of  profits  and  there- 
fore a  partnership,  and  A.  cannot  sue  B.  at  law  for  his  share.* 

B.  advanced  ^20,000  to  H.  to  invest  in  the  purchase  and  sale  of 
cotton  goods,  H.  to  attend  to  business,  and,  after  repaying  the 
money,  divide  the  profits  equally.  Real  estate  was  bought  with 
part  of  the  proceeds  and  the  title  taken  in  H.'s  name.  There  was 
held  to  be  a  partnership  inter  se,  and  a  loss  must  fall  upon  both.* 
So  Avhere  S.  gave  N.  S300  to  buy  sheep,  S.  to  have  half  the  profits, 
and  if  there  were  losses  he  was  to  have  no  interest,  this  is  a  part- 
nership inter  se,  not  merely  in  the  profits,  but  in  the  §300.'' 

Where  L.  agreed  to  lease  his  saw-mill  for  eleven  months  to  W. 
and  T.,  and  to  advance  $1,000  to  make  improvements,  and  to  bear 
one-third  of  the  expenses  of  running  it  above  that,  W.  and  T.  to 

iBucknamv.  Barnum,  15  Conn.  67.  J.  Eq.  614,  but  this  point  is  not  af- 

2Robbins  v.  Laswell,  27  III.  365.      '  fected  thereby. 

3  Bearce  v.  Washburn,  43  Me.  564 ;  »  Lengle  v.  Smith,  48  Mo.  276. 

Wi-'ght  V.  Davidson,  13  Minn.  449.  6Biinkley  v.  Harkins,  48  Tex.  225. 

^Ruckman  f.  Decker,  23  N.  J.  Eq.  T  Newbiau    v.    Snider,    1   W.   Va, 

283.     The  case  was  reversed  in  28  N.  153. 

48 


TESTS  OF  A  PARTNERSHIP.  §  3G. 

make  certain  repairs  and  to  run  tlie  mill,  the  lumber  to  be  shipped 
to  a  person  in  Chicago  designated  by  L.,  and  the  proceeds  to  be  ap- 
plied seventy-five  cents  per  thousand  feet  to  L.  for  reut,  81. To  per 
thousand  feet  to  W.  and  T.  for  expense  of  manufacturing,  then  to 
L.  for  advances  for  logs  to  stock  the  mill  W.  and  T.  were  to  pay 
L.  one-fourth  of  the  net  proceeds  out  of  the  balance.  L.,  W.  and  T. 
were  held  partners  and  jointly  liable  for  the  repairs  to  the  mill  be- 
cause jointly  interested  in  the  lumber  and  in  the  profits.' 

An  agreement  between  two  that  each  should  furnish  a  horse  to 
break  land,  one  to  pay  all  expenses,  the  other  to  do  all  the  work, 
money  earned  to  be  equally  divided,  was  held  a  partnership  inter 
se;  as  was  also  an  agreement  that  one  should  furnish  a  horse 
atd  boy  for  a  corn-shelling  machine,  the  other  to  go  around  with 
the  machine  and  do  the  Avork,  earnings  and  expenses  to  be  shared 
alike.     And  under  both  agreements  a  suit  for  accounting  lies.* 

Two  merchants  agreed  to  open  a  store,  one  to  put  in  all  the 
stock,  the  other  to  superintend,  and  receive  one-third  of  the  profits 
*' realized;"  this  is  a  partnership  inter  se;  realized  means  profits 
deducting  losses,  and  a  loss  by  fire  is  not  different  from  any  other 
loss  and  must  be  deducted  before  estimating  profits.* 

Two  persons  agree  to  carry  on  a  business,  one  to  give  his  labor, 
the  other  all  materials  and  also  provisions  for  the  former's  family, 
profits,  less  cost  of  materials  and  provisions,  to  be  divided;  this  is  a 
partnership;  therefore  the  former  must  be  a  co-plaintiff  in  an  ac- 
tion for  work  and  labor.  The  reason  assigned  is  that  he  looked  to 
the  profits  as  such.  Probably  the  better  reason  is  that  both  owned 
the  business.* 

§  36.  no  co-ownersliip  of  the  Tbiisiuess. —  On  the  other 

hand,  if  it  clearly  appears  that  the  parties  are  not  joint  own- 
ers of  the  business,  or  that  one  alone  is  principal  and  the 
other  receives  his  share  as  compensation,  it  is  not  a  part- 
nership. Numerous  examples  of  this  will  be  found  below 
in  treating  of  profits  as  compensation,  and  the  case  of  a  sub- 
partnership  hereafter  examined  is  a  further  instance. 

Where  H.  &  J.  agreed  to  buy  of  D.  all  the  whisk}^  made  by  him, 
and  to  allow  him  half  the  profits  over  the  price  paid,  D.  is  not  a 

1  Whitney  v.  Ludington,  17  Wis,  3  Simpson  v.  Feltz,  1  McCord,  Ch. 
140.  213;  16  Am.  Dec.  602. 

a  Gilbanky.  Stephenson,  31  Wis.  593.        ^Holt  v.  Kernodie,  4  Ired.  L.  199. 
Vol.  I  — 4  49 


§  3G.  NATURE  AND  FORMATION. 

partner  of  H.  &  L.,  and  hence  not  liable  for  barrels  ordered  by  D., 
for  the  whisky.  The  half  profits  is  only  an  additional  price  for  the 
whisky.' 

Plaintiffs  placed  money  in  the  hands  of  defendants,  avIio  were 
partners  in  the  purchase  of  prize  claims,  to  be  invested  in  them  and 
collected,  and  the  net  profits  to  be  divided.  This  is  not  a  partnership, 
for  the  plaintiff  was  to  be  owner  of  the  claims,  but  is  an  employment.'^ 
Where  B.  agreed  that  on  all  claims  against  the  United  States, 
which  L.  should  procure  to  be  put  in  B.'s  hands,  B.  will  pay  him 
twenty  per  cent,  as  fast  as  the  claims  were  paid,  there  is  no  part- 
nership, for  there  is  no  joint  and  mutual  interest  in  the  business, 
and  an  action  at  law  for  L.'s  share  lies.* 

Ole  Bull  and  S.,  a  music  dealer,  agreed  to  go  America  on  a  musical 
tour,  Ole  Bull  to  play  the  violin  at  concerts  to  be  arranged  for  by 
S.;  each  to  pay  his  own  traveling  expenses,  and  S.  to  receive  one- 
third  the  net  proceeds.  Ole  Bull  discharged  S.  and  employed  an- 
other agent.     S.  can  sue  him  in  assumpsit.* 

A.  agreed  with  two  executors  to  cut  logs  from  the  decedent's 
lands,  run  them  to  market,  sell  and  divide  profits  after  repayment 
of  money  advanced  for  the  purpose  by  one  of  the  executors.  This 
is  a  contract  of  hire  and  A.  has  no  leviable  interest  in  the  logs.* 
So  a  laborer  paid  under  a  written  contract  a  share  of  the  net  profits 
of  a  business,  after  deducting  a  sum  as  iijterest  on  the  capital,  and 
having  no  other  interest,  is  not  a  partner  infer  se.^ 

The  owner  of  several  farms  agreed  that  three  of  his  sons  and  a 
son-ia-law  could  work,  them  for  five  years,  he  and  the}''  furnishing 
what  teams  and  tools  they  had,  each  to  have  his  living  out  of  the 
products,  and  at  the  end  of  five  years  they  to  have  one-half  his  per- 
sonal property  and  half  the  product  of  the  farms,  and  if  they  were 
faithful  he  was  to  deed  to  them  one-half  the  farms.  This  is  not  a 
partnership  inter  se.  Hence  the  representative  of  the  son-in-law, 
who  died  shortly  after,  never  having  been  able  to  work,  is  not  en- 
titled to  an  accounting.  The  owner  evidently  intended  to  keep 
the  title  of  the  real  and  personal  property  daring  the  term,  and  the 
services  were  a  condition  precedent  to  the  conveyances.'' 

Where  three  individuals,  H.,  N.  and  G.,  contracted  with  the  U.  S. 

1  Donley  v.  Hall,  5  Bush,  549.  5 Ford  v.  Smith,  27  AVis.  261.     See 

zProuty  V.  Swift,  51  N.  Y.  594.  Dwiuel  v.  Stoue,  30  Me.  384  (g  37). 

SLogie  V.  Black,  24  W.  Va.  1.  6Atherton  v.  Tilton,  44  N.  H.  452. 

<Bull  V.  Schuberth,  2  Md.  38.  "Chase  r.  Barrett,  4  Paige,  148. 

50 


TESTS  OF  A  PARTNERSHIP.  §  37. 

R.  Co.,  reciting  that  fhey  contemplated  assuming  control  of  the 
company  if  satisfied  that  its  business  was  profitable,  and  to  deter- 
mine this,  agreeing  to  advance  it  money  to  enable  it  to  fill  such  of 
its  orders  for  goods  as  these  parties  approved  of,  the  company 
agreeing  to  assign  the  orders  to  said  parties,  who  were  to  collect, 
reimburse  themselves  and  retain  a  proportiou  of  the  profits,  not 
less  than  ten  per  cent,  of  the  face  of  the  order,  this  was  ruled  not 
to  be  a  partnership.' 

A  contract  providing  that  F.  shall  send  to  S.  hides  for  the  pur- 
pose of  being  tanned,  S.  not  to  work  for  any  other  party,  and  to 
receive  for  his  services  a  part  of  the  profits,  is  not  a  partnership 
infer  sp..  The  expressions  shall  send  leather,  shall  not  work  for 
any  other  party,  shall  be  paid  for  services,  all  show  that  a  partner- 
ship was  not  intended.* 

§  37.  Control  or  power  of  disposition  as  a  test. —  Where 
from  the  relation  of  the  parties  it  appears  that  there  is  no 
right  of  control  over  the  property  or  profits,  or  no  power  of 
disposition  in  one  of  them,  although  he  is  to  share  the  profits, 
this  is  not  consistent  with  a  partnership,  and  hence  the  in- 
tention not  to  become  partners  will  be  inferred.' 

In  Dwinel  v.  Stone,*  A.  owned  logs  and  B.  was  to  cut  them  on  a 
share  of  profits;  this  is  not  a  partnership.  The  reason  given  by  the 
court,  however,  is  open  to  very  great  dispute,  namely,  that  there  can 
be  no  profit  or  loss  separate  from  a  joint  interest  in  the  capital; 
here  the  logs  which  are  the  capital  belonged  wholly  to  A. 

In  Braley  v.  Goddard,^  G.,  having  the  sole  right  to  cut  timber 
from  certain  lands,  made  an  agreement  with  B.,  whereby  G.  was  to 
furnish  teams,  money  and  supplies,  and  B.  was  to  cut  the  timber 
and  take  it  to  market,  giving  his  whole  time  to  the  work,  and  the 
profits  were  to  be  divided.  If  B.  desired  to  sell  his  share  of  the 
lumber  he  could  do  so,  G.  approving  the  price  and  the  buyer,  but 

iCassidyu.  Hall,  97N.  Y.,  159.  Shaw,    82    Mo.    76;    Newberger    v. 

2  Stevens  u.  Faucet,  24  111.  483.    See  Fields,  23  Mo.  App.  631;  Conklin  v. 

the  same  partnership,  Fawcett  V.  Os-  Barton,    43   Barb.   435;  Voorhees  v. 

born,  33  id.  411.  Jones,  29  N.  J.  L.  270;  Kellogg  v. 

•  Dwinel  v.  Stone,  30  Me.  384;  Bra-  Grisvvold,  12  Vt.  291 ;  Clark  v.  Smith, 

ley  V.  Goddard,  49  id.  115;  Tharp  v.  52  id.  529;  Woodward  v.  Cowing,  41 

Marsh,    40    Miss.    158 ;    Donnell    V.  Me.  9  (dictum). 

Harshe,  67  Mo.  170 ;  Musser  v.  Brink,  <  30  Me.  3S4. 

63    Mo.    242;  SO    id.    350;  Ash  by   v.  6  49  Me.  115. 

51 


§  3S.  NATURE  AND  FORMATION. 

G.  was  entitled  to  take  it  at  the  price.  This  was  held  not  to  con- 
stitute a  partnership  i7iter  se,  because  B.  did  not  have  a  partner's 
right  to  dispose  of  the  whole ;  hence  B.  can  sue  G.  at  law  for  his 
services. 

In  Clark  v.  Smith,'  C.  owned  a  mill,  farm  and  wood  lot;  F.  agreed 
with  him  to  cut  the  timber,  haul  it  to  the  mill  and  manufacture  it 
into  chair  backs  or  such  other  goods  as  C.  directed,  and  carry  on  the 
farm  in  connection  with  the  mill;  C,  to  furnish  lumber,  market  the 
goods  and  make  collections.  Taxes  on  the  mill  and  farm,  expenses 
of  hauling,  freight  and  proceeds  to  be  equally  divided.  It  was 
held  that  F.  was  not  a  partner,  because  he  had  no  control  of  the 
products,  voice  in  the  sale  nor  share  or  specific  interest  in  the  profits, 
but  merely  a  share  in  the  proceeds  without  considering  the  raw 
material  as  anything;  and  this  was  as  compensation  and  not  as 
profits,  and  hence  had  no  attachable  interest  in  the  product. 

§  38.  And  on  the  other  hand,  the  existence  of  a  power  of 
disposition  in  each  has  been  held  sufficient  to  constitute  a 
partnership,  even  though  the  gross  receipts  were,  in  the  ab- 
sence of  such  disposition,  to  be  divided.^ 

In  Moore  v.  Davis,'  Davis,  in  order  to  realize  an  estate  as  a  build- 
ing speculation,  agreed  with  Moore,  a  practical  land  agent  and 
surveyor,  to  pay  him  one-half  the  profits,  deducting  purchase 
money,  interest  on  it,  legal  charges,  auctioneer's  charges,  etc., 
Moore  to  allow  him  one-third  of  any  fees  he  received  from  builders 
and  to  bear  half  of  any  losses;  Moore  not  to  require  vouchers  from 
or  question  payments  or  expenses  made  by  Davis.  The  agreement 
not  to  be  "construed  as  a  partnership  between  us,  and  only  and 
solely  to  relate  to  the  above  estate,"  and  Moore  not  to  charge  Davis' 
credit  in  respect  thereof  without  his  written  consent.  Davis  having 
discharged  Moore  for  alleged  neglect,  Moore  brought  suit  for  an 
account  of  profits,  and  it  Avas  held  to  be  a  partnership  and  not  a 
hiring.  That  Moore  was  to  bring  in  one-third  of  his  fees  as  a  cir- 
cumstance. The  agreement  to  share  profit  and  loss  is  "  a  strong 
feature  in  favor  of  a  partnership."  The  words  negativing  a  part- 
ship  negative  a  general  partnership,  and,  unless  they  admit  a 
partnership  in  the  estate,  would  be  unmeaning;   and  the  clause 

153  vt.  529.  429;  and  see  Whitney  v.  Ludington, 

2Autrey  v.   Frieze,    59    Ala.    587;    17  Wis.  140. 
Farmers'  Ins.  Co.  v.  Ross,  29  Oh.  St.        3 11  Ch.  D.  2G1. 

53 


TESTS  OF  A  PARTNERSHIP.  §  39. 

forbidding  Moore  to  charge  Davis'  credit  suppose  the  existence  of 
a  partnership,  for  he  could  not  charge  Davis'  credit  as  an  employee, 
and  are  equivalent  to  stating  that  Davis,  as  mannging  partner,  was 
to  have  control.  The  fact  that  payments  were  contemplated  out 
of  Moore's  pocket  would  be  most  unusual,  unless  he  were  a  partner. 

The  owner  of  a  vessel  and  the  captain  agreed  to  pay  part  of  the 
expenses  and  divide  the  freight  earned,  with  power  in  the  captain 
to  invest  the  proceeds  on  joint  account.  It  was  held  that  the 
owner's  consent  having  been  deemed  necessary  to  investing  the 
freight  earned  in  merchandise,  showed  that  he  owned  part  of  the 
profits,  and  that  it  was,  therefore,  not  the  measure  of  an  amount  to 
be  paid  for  the  hire  of  the  schooner,  but  was  profits  proper  and  the 
arrangement  a  partnership.' 

An  agreement  was  made  by  which  H,  is  to  look  up  and  bid  in 
desirable  lands  at  tax  sales,  and  E.  is  to  furnish  the  money.  Both 
were  to  control  the  subsequent  disposition  of  them,  and  the  profits 
were  to  be  divided  equally  after  repaying  E,  out  of  the  first  proceeds 
of  sales  whatever  was  due  him  on  preceding  purchases.  Here  is  a 
course  of  dealing  as  distinguished  from  particular  purchases,  a  right 
in  H.  to  use  his  discretion  in  selecting  and  buying  and  equal  power 
in  selling,  and  this  is  a  partnership;  both  are  agents  of  the  firm. 
That  the  land  is  bought  in  E.'s  name  is  immaterial.* 

If  there  is  otherwise  a  true  partnership,  however,  as  in  a  joint 
adventure  with  participation  of  profit  and  loss,  the  fact  that  by  the 
contract  one  party  is  to  have  control  of  the  product  for  sale  will 
not  prevent  it  being  such.' 

§  39.  Contracts  to  manufacture  in  wliicli  eacli  is  princi- 
pal.—  There  is  no  reason  why  a  person  owning  or  purchasing 
raw  material  may  not  procure  the  services  of  another  as  an 
independent  contractor  to  manufacture  it  into  goods,  and  de- 
liver the  products  to  the  original  owner  for  disposition,  and 
receive  his  compensation  in  a  share  of  the  avails,  without 
the  parties  being  partners;  although  each  incurs  certain  ex- 
penses, and  hence  incidentally  the  terms  profit  and  loss  are 
applicable,  yet  these  are  cases  of  compensation  or  of  divis- 
ion of  gross  receipts.* 

1  Cox  V.  Delano,  3  Dev.  L.  89,  *  Kilshaw  v.  Jukes,  3  Best  &  Smith, 

2  Hunt  V.  Ei-ikson,  57  Mich.  330.         847  (§  20),  is  somewhat  of  this  kind. 

3  Meador  v.  Hughes,  14  Bush,  652. 

53 


§  39.  NATURE  AND  FORMATION. 

Thus,  in  Loomis  v.  Marshall,'  M.  agreed  to  furnish  a  supply  of 
"wool  to  F.'s  factory  for  two  years;  F.  to  make  it  into  cloth,  devoting 
the  entire  use  of  the  factory  thereto,  and  the  net  avails,  less  cost  of 
sale,  was  to  be  divided,  and  the  cost  of  the  warp  in  making  satinets, 
and  the  cost  of  insurance,  was  to  be  shared.  M.  was  held  not  to  be 
a  partner  of  F.  and  therefore  not  liable  for  work  and  labor  done  in 
the  factory.  The  court  distinguished  between  sharing  profits  and 
avails;  thus,  if  M.  had  purchased  the  wool  at  a  very  low  price  he 
would  have  made  more  than  F.,  and  he  might  make  and  F.  lose. 

So  where  A.  owned  a  marble  quarry,  and  B.  agreed  to  erect  a 
mill  to  manufacture  it,  A.  to  quarry  and  ship  the  marble  to  B.'s 
mill,  paying  half  the  cost  of  transportation,  B.  to  manufacture 
the  marble,  sell  it,  collect  the  price  and  divide  avails  equally,  this 
was  held  not  to  be  a  partnership  inter  se;  because  there  was  no 
community  of  profit  and  loss,  for  one  might  gain  and  the  other  lose 
at  the  same  time.* 

Plaintiffs  agreed  to  purchase  a  certain  quantity  of  hides,'and  de- 
liver them  at  H.'s  tannery,  and  he  was  to  tan  them  at  his  own 
expense;  after  which  plaintiffs  were  to  sell  them  at  their  expense 
and  give  H.  one-half  the  proceeds  over  the  original  cost.  This 
was  held  not  to  constitute  a  partnership  inter  se,  but  is  a  mere 
compensation  to  H.,  and  H.  has  no  ownership  in  the  hides  and  is 
liable  if  he  convert  them.  And  a  subsequent  agreement  that  each 
could  use  such  leather  as  he  desired  does  not  change  the  relation.' 

In  a  similar  case,  A.  was  to  furnish  stock,  B.  to  manufacture  it 
into  cloth  and  deliver  the  cloth  to  A.,  and  A.  was  to  pay  him  a 
certain  price  per  yard  and  one-third  of  the  net  profits.  They  were 
held  not  to  be  partners  inter  se,  nor  as  to  third  persons;  and,  there- 
fore, A.  is  not  liable  to  one  who  sold  dye-stuffs  to  B.  for  the  pur- 
pose of  the  manufacture,  though  he  had  given  credit  to  both.  The 
court  sa}'  that  there  is  no  difference  between  sharing  gross  and  net 
profits,  and  that  B.  had  no  specific  lien  or  preference  in  payment 
over  other  creditors  of  A.* 

A.  was  to  furnish  .wool,  B.  to  make  it  into  hat  bodies  without 
charge  for  time  or  expenses,  and  A.  to  peddle  or  sell  the  same  with- 

1 13  Conn.  69;  30  Arn.  Dec.  596.  See,     (§  29),  where  the  agreement  was  to 
also,  Kellogg  v.  Griswold,  13  Vt.  391 ;    share  profit  and  loss, 
also,  Fawcett  v.  Osborn,  33  111.  411,        2  Flint  v.  Marble  Co.  53  Vt.  669. 
and  Stevens  v.   Faucet,   24  id.  483        a  Clement  v.  Hadlock,  13  N.  H.  185. 

*  Denny  v.  Cabot,  6  Met.  83. 
64 


TESTS  OF  A  PARTNERSHIP.  §  40. 

out  charge  for  tirae  or  expenses;  eacli  to  pay  half  the  expense  of 
extra  work,  wool  and  wear  of  machinerj'-,  and  the  proceeds,  less  cost 
of  work,  to  be  divided.  This  was  held  not  to  be  a  partnership;  the 
court  saj'ing  that  a  joint  interest  in  gross  earnings,  but  not  in  loss 
or  net  profits,  is  not  a  partnership.' 

E.  &  K.  were  to  furnish  B.  with  money  up  to  610,000  to  enable 
him  to  make  horse  rakes,  B.  to  sell  them  and  pay  all  proceeds  to  E. 
&  K.  until  the  advances  were  refunded.  They  are  not  partners, 
and  E.  &  K.  are  therefore  not  liable  to  one  who  furnished  B.  with 
material,  though  he  had  charged  them  all.' 

J.  &  Co.  agreed  to  furnish  materials,  F.  to  manufacture  them,  T. 
&  Co.  to  sell  and  pay  him  the  profits,  kss  cost  of  material  and  ten 
per  cent,  on  the  sales;  held,  they  are  not  partners,  and  the  articles 
manufactured  in  A.'s  shop  are  not  liable  to  attachment  by  his  cred- 
itors, but  are  the  property  of  J.  &  Co.^ 

B.  was  to  furnish  wool  to  R.  for  one  year,  R.  to  work  it  into 
satinets,  finding  and  paying  for  the  warp  himself;  B.  to  have  the 
sole  direction  of  selling,  and  each  paying  half  the  charges;  B.  to  pay 
R.  forty  per  cent,  of  the  sales  of  the  satinets.  B.  is  not  a  partner  of 
B.  and  therefore  not  liable  for  the  warps  furnished  to  B.  B.'s  ob- 
ject was  to  get  his  wool  worked  into  cloth,  and  R.  had  no  interest 
in  the  profits  except  as  regulating  his  compensation.  This  case  is 
like  Loomis  v.  Marshall,  12  Conn.  69,  supra,  except  that  there  the 
warps  were  at  joint  expense.* 

A.  agreed  to  furnish  lumber  for  three  years,  B.  to  manufacture  it 
into  doors  and  blinds,  sell  them,  and  divide  profits  after  paying 
freight  and  expenses;  this  is  not  a  partnership  inter  se,  but  a  mere 
contract  for  manufacture,  in  which  each  party  is  a  principal.^ 

§  40.  unless  the  profit  is  a  joint  fund. —  But  even  here 

an  intention  to  regard  the  profits  as  a  fund  for  all  with  a 
lien  upon  its  disposition  will  be  evidence  of  a  partnership. 
Whether  the  contract  is  to  be  construed  as  providing  such  a 
fund  depends  often  upon  the  length  of  the  chancellor's  foot,  jj 
for  the  cases  are  not  reconcilable. 

Thus,  where  W.,  the  owner  of  a  zinc  mine,  agreed  with  M.  S.  & 
Co.  to  furnish  them  two  thousand  tons  of  ore  per  year  for  three 

1  Mason  v.  Potter,  26  Yt.  723.  3  Judson  v.  Adams,  8  Cush.  556. 

2  Eshleman  v.  Harnish,  76  Pa.  St.        *  Turner  v.  Bissell,  14  Pick.  192. 
97.  SHitchings  v.  Ellis,  12  Gray,  449. 

55 


§  40.  NATURE  AND  FORMATION. 

years  at  §10  per  tou,  thej^  to  proricle  suitable  building  and  machin- 
ery, to  be  paid  for  out  of  tbe  profits,  and  to  convert  the  ore  into 
paints,  the  profits  to  be  divided,  this  was  held  to  be  a  partnership 
inter  se.' 

And  so,  per  contra,  where  G.  furnished  a  mill  and  M.  the  corn  to 
be  ground,  M.  to  have  a  certain  amount  of  meal  on  each  car  load 
ground,  in  addition  to  the  price  of  the  corn  he  furnished,  out  of  the 
profits,  G.  was  held  not  to  be  a  partner  with  M.  as  to  third  per- 
sons who  ?old  the  corn  to  M.,  because  he  had  no  interest  in  the 
profits  while  they  were  accruing,  and  the  contract  is  one  for  com- 
pensation only.* 

F.  Bros.,  wholesale  dry  goods  dealers,  agreed  to  furnish  to  M.  all 
the  goods  and  raw  material  necessary  to  make  clothing  to  enable 
him  to  carry  on  a  retail  business  in  ready-made  clothing,  M.  to  sup- 
ply all  other  goods  necessary  for  the  business  and  give  all  his  time 
to  it,  F.  Bros,  to  be  allowed  in  settlement  the  regular  wholesale 
prices  for  what  they  furnished,  and  M.  to  receive  the  net  profits 
beyond  that,  he  paying  all  expenses.  F.  Bros,  purchased  the 
building  whereon  the  business  was,  and  that  was  charged  in  the 
account  and  paid  by  M.  in  the  settlements;  afterwards  F.  Bros. 
stopped  the  business  by  taking  entire  and  exclusive  possession  of 
the  whole  concern.  In  a  suit  by  M.  against  F.  Bros,  they  were 
held  to  be  partners  because  there  was  a  community  of  interest  in 
the  profits  and  losses,  although  the  arrangement  seemed  designed 
to  escape  being  partners.^ 

Where  L.  hired  a  shop  wherein  the  same  business  had  formerly 
been  carried  on,  and  bought  a  stock  of  goods  in  his  own  name  and 
permitted  W.  to  carry  on  business  with  them,  W.  to  pay  all  ex- 
penses and  return  to  L.  the  value  of  all  he  put  in  and  half  of  all  he 
made  over  his  own  expenses,  L.  to  have  the  right  to  take  possession 
at  any  time  to  secure  himself,  L.  is  liable  as  a  partner  to  a  third 
person  who  sold  goods  to  W.  to  carry  on  the  business  in  reliance 
on  a  belief  that  L.  was  a  partner.  The  court  bases  the  decision  on 
the  doctrine  that  L.  has  an  interest  in  the  profits  as  profits,  and  a 
lien  on  the  whole  as  profits  for  his  share.  This  doctrine  would 
make  them  true  partners,  that  is,  inter  se.* 

St.  G.  advanced  money  to  pay  land,  D.  to  make  all  sales,  and 

1  Wadsworth  v.  Manning,  4  Md.  59.        <  Pratt  i\  Langdon,  97  Mass.  97;  12 
s Kelly  V.  Gaines,  U  Mo.  App.  506.     Allen,  546. 
»  Meyers  v.  Field,  37  Mo.  434. 

56 


TESTS  OF  A  PARTNERSHIP.  §  42. 

after  return  of  tlie  purchase  money  and  paying  expenses  and  costs, 
the  net  profits  were  to  be  divided.  Tliis  contract  is  consistent  with 
either  a  partnership  or  an  employment.  The  referee  having  found 
it  to  be  the  latter,  the  court  affirmed  the  finding.' 

§  41.  Services  in  procuring  sales. —  It  frequently  happens 
that  the  owner  of  land  or  goods,  desiring  to  get  them  into 
market  and  sold,  will  contract  to  pay  one  who  agrees  to  do 
this  a  certain  per  cent,  of  the  net  proceeds.  These  contracts 
are  construed  as  employments  and  not  as  partnerships. 

Thus,  where  the  owner  of  hay  procured  defendant  to  take  it  to 
market,  sell  it  at  not  less  than  a  certain  price,  he  to  receive  a  cer- 
tain compensation  and  half  the  excess,  this  is  not  a  partnership 
inter  se.^ 

Two  persons,  having  a  contract  to  build  a  road,  agreed  with  M. 
that  if  he  would  advance  a  certain  sum  and  help  build  the  road  they 
would  let  him  have  a  share  in  the  profits  proportionate  to  the  help 
he  afforded,  one-half  to  be  taken  from  each  contractor's  share.  This 
is  a  mode  of  compensation  and  not  a  partnership,  and  M.  can  sue  in 
assumpsit  for  the  amount  due  him.' 

So  if  the  owner  of  land  warrants  agrees  with  a  person  that  the 
latter  shall  enter,  locate  and  survey  them  for  a  share  of  the  land  or 
profit,  this  is  not  a  partnership.* 

D.  had  N.  buy  cattle  in  his  name,  N.  to  slaughter  them  and  sell 
the  meat,  and  pay  D.  out  of  the  proceeds  the  cost  and  one-fourth  of 
a  cent  per  pound,  and  N.  to  have  the  balance.  Held  not  a  partner- 
ship; and  whether  the  cattle  are  subject  to  the  claims  of  D.'s  cred- 
itors depends  on  whether  the  money  was  loaned  by  D.  to  N.,or  N. 
was  employed  as  C's  agent,  which  is  a  question  for  the  jury.* 

A  contractor  to  carry  the  mails  agreed  with  a  subcontractor 
that  the  latter  should  perform  half  the  service  and  be  entitled  to 
half  the  profits.     This  was  held  to  be  a  partnership.^ 

§  42.  Arrangement  to  collect  a  debt. —  Where  the  object  of 
an  agreement  is  to  collect  a  debt  due  from  one  party  to  an- 
other, this  fact  will  necessarily  go  far  to  show  that  no  inten- 

1  Darrow  v.  St.  George,  8  Colorado,  and  Ellsworth  v.  Pomeroy,  26  Ind. 
592.  158. 

2  Morrison  v.  Cole,  30  IMich.  102.  5  Dale  v.  Pierce,  85  Pa.  474. 
'Muzzy V.Whitney,  10  Johns.  226.        6 Wilkinson  v.  Jett,  7  Leigh  (Va.), 
*McArthur  t>.   Ladd,    5    Oh.   514;     115;  30  Am.  Dec.  493. 

57 


g  42.  NATURE  AND  FORJtIATION. 

tioii  to  become  partners  existed.  Their  relation  becomes 
analogous  to  that  of  employer  and  employee,  or  lender  and 
borrower,  or  landlord  and  tenant,  by  which  one  is  to  bear 
all  the  loss,  and  it  is  not  that  of  joint  principals  and  agents.* 

Thus,  mill-owners  indebted  to  J.,  in  order  to  pay  the  debt 
made  an  agreement  with  him  whereby  J.  was  to  furnish  Avheat. 
The  mill-owners  were  to  make  it  into  flour,  and  all  flour,  except  a 
part  sold  at  the  mill  in  order  to  carry  it  on,  was  to  be  sold  to  pay 
J.  the  cost  of  the  wheat  and  two  and  one-half  per  cent,,  and  the 
balance  to  liquidate  the  debt,  and  the  surplus  to  the  mill-owners. 
This  is  not  a  partnership,  but  a  compensation  for  the  use  of  the 
mill,  and  a  levy  of  execution  upon  the  wheat  by  creditors  of  the 
mill-owners  is  null  as  against  J." 

D.  owned  a  mill  and  was  indebted  to  B,  B.  agreed  to  assist  in 
running  the  mill,  furnish  the  stock  and  support  D.'s  family;  D.  and 
his  sons  to  operate  the  mill,  B.  to  sell  the  lumber,  and  after  deduct- 
ing the  means  furnished  by  him  and  his  compensation,  to  apply 
the  surplus  to  the  debt.  This  was  held  not  to  be  a  partnership 
inter  se.^ 

Parties  to  whom  B.  was  indebted  were  to  furnish  him  with  funds 
to  buy  lumber,  ship  it  to  them  and  pay  him  a  compensation  for  his 
services,  and  apply  the  rest  of  the  profits  to  the  debt.  This  is  not 
a  partnership,  for  there  is  no  community  of  profit  and  loss,  and  B.'s 
creditors  cannot  levy  upon  the  lumber.* 

So  where  by  the  articles  of  partnership  the  share  of  profits  of  one 
partner  was  to  be  paid  to  his  creditor,  who  had  sold  him  the  goods 
constituting  his  contribution  to  the  business,  this  does  not  make 
the  creditor  a  partner  and  he  can  sue  the  firm  at  law.* 

If,  however,  the  creditors  agree  to  advance  money  to  continue 
the  debtor's  business  for  their  own  profit  and  to  bear  losses  equally, 
they  are  partners  as  to  each  other.*  And  where  one  creditor,  with 
the  concurrence  of  another,  obtains  from  their  common  debtor  all 

1  Cox  V.  Hickman,  8  H.  L.  2G8  lake,  23  Minn.  383,  where  one  part* 
{supra,  55  19).  ner  agreed  to  pay  out  of  pi-ofits  the 

2  Johnson  v.  Miller,  16  Oh.  431.  deht  owed  by  a  tliird  person  to  the 

3  Dils  V.  Bridge,  23  W.  Va.  20.  firm.     Such  person    is  not   made  a 
<  Clark  V.  McKellar,  12  Up.  Can.  C     partner  as  sharing  profits. 

P.  563.  6  Wills  V.  Simmonda,  51  How.  Pr. 

8  Drake  v.   Ramey,  3  Rich.  L.  (S.     48 ;  S.  C.  8  Hun,  189. 
Ca.)  37 ;  and  see  Delaney  v.  Timber- 

58 


TESTS  OF  A  PARTNERSHIP. 


§43. 


his  stock  of  goods  by  making  a  payment  thereon,  for  the  purpose 
of  selling  again  to  reimburse  themselves  their  debt,  a  loss  by  decline 
of  prices  must  be  shared  by  both.  This,  however,  should  not  be 
called  a  partnership  between  the  creditors.^ 

§43.  Profits  as  compensation  for  services. —  A  person 
who  is  to  receive  a  share  of  the  profits  as  compensation 
for  services  as  servant,  clerk,  manager,  broker,  or  any 
other  agent,  is  not  a  partner.  The  only  difference  between 
him  and  any  other  employee  is  that  his  salary  or  wages 
is  contingent.  His  connection  with  the  firm  is  inconsist- 
ent with  a  partnership,  for  it  precludes  the  rights,  duties, 
powers  and  liabilities  of  that  relation.  In  most  of  the 
cases  cited  in  the  notes,  the  contract  of  the  parties  ex- 
pressly stated  that  the  share  of  profits  was  for  services;  in 
others  that  conclusion  was  inferred.  But  whether  expressed 
or  inferred,  it  is  clear  that  the  parties  are  not  partners.^ 


i  Stettauer  v.  Carney,  20  Kan.  474. 

2Regina  v.  McDonald,  7  Jur.  N.  S. 
1127 ;  31  L.  J.  M.  C.  67 ;  Geddes  v. 
Wallace,  2  Bligh,  270 ;  Pott  v.  Eyton, 
3  C.  B.  33;  Rawlinson  v.  Clark,  15  M. 
&  W.  292;  Stocker  v.  Brockelbank,  3 
Mac.  &  G.  250 ;  Ross  v.  Parkyns,  L. 
R.  20  Eq.  331 ;  Berthold  v.  Goldsmith, 
24  How.  536 ;  Seymour  v.  Freer,  8 
Wall.  202,  215;  Be  Blumenthal,  18 
Bankr.  Reg.  555 ;  Hazard  v.  Hazard, 
1  Story,  371;  Einstein  v.  Gourdin,  4 
Wood's  C.  C.  415;  Brown  v.    Hicks, 

24  Fed.  Rep.  811 ;  Shropshire  v.  Shep- 
perd,  3  Ala.  733 ;  Hodges  v.  Dawes, 
6  Ala.  215;  Moore  v.  Smith,  19  Ala. 
774;  Dillard  v.  Scruggs,  36  Ala.  670; 
Randle  v.  State,  49  id.  14 ;  Tayloe  v. 
Bush,  75  id.  432 ;  Olmstead  v.  Hill, 
3  Ark.    346;    Christian    v.  Crocker, 

25  Ark.  327;  Hanna  v.  Flint,  14  Cal. 
73;  Darrow  v.  St.  George,  8  Colo- 
rado, 592;  Pond  v.  Cummins,  50 
Conn.  372 ;  Sankey  v.  Columbus  Iron 
Works,  44  Ga.  228 ;  Stevens  v.  Fau- 
cet, 24  111.  483 ;  Porter  v.  Ewing,  24 


id.  617;  Fawcett  v.  Osborn,  32  id. 
411 ;  Burton  v.  Goodspeed,  69  id.  237; 
Macy  V.  Combs,  15  Ind.  469;  Ells- 
worth V.  Pomeroy,  26  id.  158;  Em- 
mons V.  Newman,  38  id.  372 ;  Keiser 
V.  State,  58  id.  379;  Heshion  v.  Ju- 
lian,  82  Ind.  576;  Price  v.  Alexan- 
der, 2  G.  Greene  (Iowa),  427;  52 
Am.  Dec.  526 ;  Reed  v.  Murphy,  2  G, 
Greene  (Iowa),  574;  Ruddick  v.  Otis, 
33  Iowa,  402 ;  Holbrook  v.  Oberne,  56 
Iowa,  324;  Shepard  v.  Pratt,  16  Kan. 
209;  Heran  v.  Hall,  1  B.  Mon.  159; 
Bulloc  V.  Pailhos,  20  Mart.  172 ;  Cline 
V.  Caldwell,  4  La.  137;  Taylor  v. 
Sotolinger,  6  La.  Ann.  154;  Hallet  v. 
Desban,  14  id.  529 ;  St.  Victor  v.  Dau- 
bert,  9  La.  314;  Miller  v.  Chandler, 
29  La.  Ann.  88;  Chaff raix  v.  Price, 
id.  176;  Maunsell  v.  Willett,  36  id. 
322;  Halliday  v.  Bridewell,  36  id. 
238;  Dwinel  v.  Stone,  30  Me.  384; 
Weems  v.  Stalliugs,  2  Har.  &  J.  365 ; 
Kerr  v.  Potter,  6  Gill,  4U4 ;  Bull  v. 
Schuberth,  2  Md.  38;  Benson  v. 
Ketchum,    14  id.    331 ;  Crawford  v. 


59 


§43. 


NATURE  AND  FORMATION. 


!N"or  are  such  persons  liable  as  partners  to  third  parties  by 
reason  of  sharing  the  profits  of  the  business.^ 


Austin,  34  id.  49;  Sangston  v.  Hack, 
52  id.  173,  192-3;  Reddington  v.  Lan- 
ahan.  59  id.  429 ;  Whiting  v.  Leakin, 
66  id.  255;  Blanchard  v.  Coolidge,  23 
Piclc.  151 ;  Judson  v.  Adams,  8  Cush. 
556;  Baxter  v.  Rodman,  3  Pick.  435; 
Bradley  v.  White,  10  Met.  303;  43 
Am.  Dec.  435 ;  Denny  v.  Cabot,  6 
Met.  82;  Buck  v.  Dowiey,  16  Gray, 
555;  Hohnes  v.  Old  Colony  R.  R.  5 
Gray,  58,  GO;  Emmons  v.  Westfield 
Bank,  97  Mass.  230;  Haskinsu  War- 
ren, 115  id.  514;  Commonwealth  v. 
Bennett,  118  id.  443;  Partridge  v. 
Kingman,  130  id.  476:  Morrison  v. 
Cole,  30  Mich.  102 ;  Wiggins  v.  Gra- 
ham, 51   Mo.  17;  State  7).  Donnelly, 

9  Mo.  App.  519;  Gill  v.  Ferris,  82  Mo. 
15G,  167;  Mason  v.  Hackett,  4  Nev, 
420;  Clement  v.  Hadlock,  13  N.  H. 
185;  Newman  v.  Bean,  21  id.  93; 
Atherton  v.  Tilton,  44  id.  452;  Nut- 
ting v.  Colt,  7  N.  J.  Eq.  539;  Har- 
grave  v.  Conroy,  19  id.  281 ;  McMa- 
hon  u.  O'Donnell,  20  id.  306 ;  Smith 
V.  Perry,  29  N.  J.  L.  74 ;  Voorliees  V. 
Jones,  29  id.  270;  Muzzy  v.  Whitney, 

10  Johns.  22G;  Vanderburgh  v.  Hull, 
20  Wend.  70;  Chase  v.  Barrett,  4 
Paige,  148;  Burckle  v.  Ec-kart,  1 
Den.  337  (aff'd  3  Den.  279;  3  N.  Y. 
132);  Ross  v.  Drinker,  2  Hall,  415; 
Mohawk  R.  R.  v.  Niles.  3  Hill,  162; 
Hodgmnn  v.  Smith,  13  Barb.  302; 
Brorkway  v.  Burnap,  16  id.  309  (12 
id.  347);  Clark  v.  Gilbert.  32  id.  576; 
Conklin  v.  Barton,  43  id.  435;  Lamb 
V.  Grover,  47  id.  317;  Merwin  v.  Play- 
ford,  3  Robt.  702;  Strong  v.  Place,  4 
id.  3'^5  '51  N.  Y.  627) ;  Leonard  v.  New 
York  Tel.  Co.  41  N.  Y.  544;  Lewis  v. 
Greider,  51  id.  231  (aflf.  49  Barb.  605); 
Osbrey  v.  Reimer,  51  N.  Y.  630  (aflf. 
49  Barb.  265);  Prouty  v.  Swift,  51  N. 


Y.  594;  Smith  v.  Bodine,  74  id.  30; 
Moore  v.  Huntington,  7  Hun,  425; 
Butler  V.  Finck,  21  id.  210;  Beudel 
V.  Hettrick,  45  How.  Pr.  198;  3  Jones 
&  Sp.  405;  McArthur  v.  Ladd,  5  Oh. 
514;  Johnson  v.  Miller,  16  id.  431; 
Ditsohe  v.  Becker,  6  Phila.  170; 
Blight  V.  Ewing,  1  Pittsb.  275;  Miller 
V.  Bartlet,  15  S.  &  R.  137;  Raiguel'3 
Appeal.  80  Pa.  St.  234 ;  Dale  v.  Pierce, 
85  id.  474;  Potter  v.  Moses,  1  R.  L 
430;  Bentley  v.  Harris,  10  id.  434; 
Simpson  v.  Feltz,  1  McCord,  Ch.  213; 
Dowry  u.  Brooks,  2  McCord,  L.  421; 
Bartlett  v.  Jones,  2  Strob.  L.  471  (47 
Am.  Dec.  606);  Norment  v.  Hull,  1 
Humph.  320;  Bell  v.  Hare,  12  Heisk. 
615;  Whitworth  v.  Patterson,  6  Lea, 
119,  124;  Goodey.  McCartney,  lOTex. 
193 ;  Bradshaw  v.  Apperson,  3G  id.  133; 
Cothran  v.  Marmaduke,  60  id.  370; 
Grabenheimer  v,  Rindskoff,  64  id. 
49;  Boardman  v.  Keeler,  2  Vt.  65; 
Ambler  v^  Bradley,  6  id.  119;  Kel- 
logg V.  Griswold,  12  id,  291; 
Stearns  v.  Haven,  16  id.  87;  Mason 
V.  Potter,  26  id.  722;  Bruce  v.  Has- 
tings, 41  id.  S80,  384;  Clark  v.  Smith, 
53  id.  529;  Hawkins  v.  Mclntire,  45 
id.  496;  Wilkinson  v.  Jett,  7  Leigh 
(Va.),  115;  30  Am.  Dec.  493;  Dils  v. 
Bridge,  33  W.  Va.  20;  Sod;ker  v.  Ap- 
plegate,  24  id.  411 ;  49  Am.  Rep.  252; 
Ford  V.  Smith,  27  Wis.  261 ;  Nicholaus 
V.  Thielges,  50  id.  491  ;  Northern 
R'y  Co.  V.  Patton,  15  Up.  Can.  C.  P. 
332. 

1  Hazard  v.  Hazard,  1  Story,  371; 
Shaw  V.  Gait,  16  Irish  Com.  L.  357; 
Berthold  v.  Goldsmith,  24  How.  536; 
Re  Francis,  3  Sawy.  286;  7  Bank. 
Reg.  359;  Marsh  v.  Dawes,  3  Biss. 
351 ;  Oppenheimer  v.  Clemmons,  18 
Fed.  Rep.  886;  Hodges  v.  Dawes,  6 
60 


TESTS  OF  A  PARTNERSHIP. 


§45. 


§  44.  Contrary  cases. —  There  are,  however,  a  few  decisions 
holding  that  one  who  participates  in  the  profits,  though  as  com- 
pensation merely,  is  liable  as  a  partner  to  third  persons.' 

§  45.  Profits  as  rent. —  On  the  same  principles  as  the  fore- 
going, an  indefinite  compensation  out  of  profits  for  the  use  of 
property,  real  or  personal,  and  dependent  on  the  success  of 
the  business,  is  in  lieu  of  rent  and  does  not  constitute  the 
owner  a  partner  inter  se.'    Nor  liable  as  partner  to  third 


Ala.  215;  Loomis  v.  Marshall,  12 
Conn.  69;  Parker  v.  Fergus,  43  111. 
437;  Burton  v.  Goodspeed,  G9  id.  237; 
Macy  V.  Combs,  15  Ind.  469;  Shepard 
V.  Pratt,  16  Kan.  209 ;  Hallet  v.  Des- 
ban,  14  La.  An.  529;  Chaffraix  v. 
Lafitte.  30  La.  An.  631 ;  Turner  v. 
Bissell,  14  Pick.  192;  Blanchard  v. 
Coolidge,  22  id.  151;  Denny  v.  Cabot, 
6  Met.  82;  Bradley  v.  White,  10  id. 
303;  43  Am.  Dec.  435;  Meserve  v. 
Andrews,  104  Mass.  360;  Partridge  v. 
Kingman,  130  id.  476;  Hall  v.  Edson, 
40  Mich.  651;  Wiggins  v.  Graham, 
51  Mo.  17,  20;  Voorhees  V.  Jones,  29 
N.  J.  Eq.  270;  Burckle  v.  Eckhart,  1 
Deu.  337  (aff'd.  3  N.  Y.  132);  Fitch 
V.  Hall,  25  Barb.  13;  Hotchkiss  v. 
English,  4  Hun,  369 ;  Butler  v.  Finch, 
21  id.  210;  Wright  v.  Delaware  & 
Hudson  Canal  Co.  40  id.  343;  Miller 
V.  Bartlet,  15  S.  &  R.,  137;  Dunham 
V.  Rogers,  1  Barr,  255;  Edwards  v. 
Tracy,  62  Pa.  St.  374;  Polk  v.  Bu- 
chanan, 5  Sneed,  721;  Goode  v. 
McCartney,  10  Tex.  193;  Buzard  v. 
First  Nat'l  B'k  (Tex.  1886),  2  S.  W. 
Rep.  54;  Bowman  v.  Bailey,  10  Vt. 
170. 

^  Ex  parte  Rowlandson,  1  Rose,  92; 
ExjMvteDighj,  1  Deac.  341;  W'ith- 
ington  V.  Herring,  3  Moo.  &  P.  30; 
Miller  v.  Hughes,  1  A.  K.  Mar.  (Ky.) 
181;  Taylor  v.  Terme,  3  Har.  &  J. 
505 ;  Rowland  v.  Long,  45  Md.  439 ; 
Strader  v.  AVhite,  2  Neb.  348,  where 


the  arrangement  was  a  device;  Mot- 
ley r.  Jones,  3  Ired.  Eq.  144;  Pur- 
viance  v.  McClintee,  6  S.  &  R.  259; 
Ditsche    v.    Becker,    6     Phila.     176. 

1  omit  overruled  American  cases  in 
states  where  the  principles  of  Cox 
V.  Heck  man  have  since  been  adopted. 

2  Wish  V.  Small,  1  Camp.  331 ;  Lyon 
V.  Knowles,  3  Best  &  Sm.  556; 
McDonnell  v.  Battle  House  Co.  67 
Ala.  90;  42  Am.  Rep.  99;  Quacken- 
bush  V.  Sawyer,  54  Cal.  439;  Beck- 
with  V.  Talbot,  2  Colorado,  639; 
Parker  v.  Fergus,  43  111.  437 ;  Smith 
V.  Vanderburg,  46  111.  34;  Keiser  v. 
State,  58  Ind.  379;  Reed  v.  Murphy, 

2  G.  Greene  (Iowa),  574;  Price  v. 
Alexander,  3  id.  427;  52  Am.  Dec, 
526 ;  Thompson  v.  Snow,  4  Me.  264 ; 
16  Am.  Dec.  263;  Bridges  v.  Sprague, 
57  id.  543;  Reynolds  v.  Tappan.  15 
Mass.  370 ;  Cutler  v.  Winsor,  6  Pick. 
335;  17  Am.  Dec.  385;  Holmes  v. 
Old  Colony  R.  R.  5  Gray,  58 ;  Beecher 
V.  Bush,  45  Mich.  1S8;  40  Am.  Rep. 
465;  Thayer  v.  Augustine,  55  id.  187; 
Ward  V.  Bodeman,  1  Mo.  App.  272, 
281 ;  Campbell  v.  Dent,  54  Mo.  325 ; 
Kellogg  Newspaper  Co.  v.  Farrell. 
88  id.  594;  Perrine  v.  Hankissou,  11 
N.  J.  L.  181 ;  Heimstreet  v.  How- 
land,  5  Den.  68;  Piuckney  u  Keyler, 
4  E.  D.  Smith,  469 ;  Johnson  v.  Mil- 
ler, 16  01).  431 ;  Dunham  v.  Rogers, 
1  Barr,  255  ;  Irwin  v.  Bidwell,  72  Pa. 
St.  244,  251 ;  Brown  v.  Jaquette,  94 


61 


§  iG.  NATURE  AND  FORMATION. 

persons,  because  of  sharing  the  profits,  for  exactly  the  same 
reasons  that  protect  an  employee  so  paid.^ 

§  4:6.  illustrations. —  F.  sued  P.  and  X.  as  partners  in  an 

opera  house  for  work  done  in  printing  bills.  P.  denied  lie  was 
partner.  P.  owned  the  building,  and  by  a  contract  with  X.  leased 
part  of  it  to  X.  for  an  opera  house,  P.  to  act  as  treasurer  at  a  sal- 
ary, and  for  the  use  of  the  building  was  to  receive  daily  one-half  of 
the  proceeds,  deducting  expenses  and  salary.  P.  is  not  liable;  he 
has  no  control  in  the  management,  furnishes  none  of  the  means, 
and  shares  none  of  the  losses.' 

The  defendant  leased  his  building  to  one  who  had  a  license  to 
sell  liquors,  the  lessee  to  furnish  the  stock  and  employ  the  defend- 
ant as  his  clerk;  defendant  to  conduct  the  business  in  the  licensee's 
name,  and  receive  all  the  profits  for  services  and  rent,  except  a  cer- 
tain sum  per  diem  to  the  licensee.  It  was  held  that  the  defendant  was 
not  a  partner  but  an  agent,  and  therefore  protected  by  the  license. 
This  case  involves  their  relations  inter  se  rather  than  as  to  third 
persons,  since  the  third  persons  referred  to  in  this  connection  are 
only  creditors  of  the  business.^ 

A  railroad  company  leased  to  an  individual  a  house  for  a  certain 
sum  and  "half  the  net  profits  arising  from  keeping  said  house  as  a 
hotel,"  keeping  an  account  open  for  their  inspection,  the  lessee  hav- 
ing a  free  pass  over  the  railroad  for  supplies.  Held,  the  railroad  corn- 
id.  113;  89  Am.  Rep.  770;  England  188;  40  Am.  Rep.  465  (^  23);  Ward 
V.  England,  1  Baxter,  108;  Tobias  v.  v.  Boderaan,  1  Mo.  App.  272,  281; 
Blin,  21  Vt.  5U;  Felton  v.  Deall,  22  Campbell  v.  Dent,  54  Mo.  325;  Kel- 
id.  170;  Bowyer  v.  Anderson,  2  logg  Newspaper  Co.  v.  Farrell,  88 
Leigh  (Va.),  550;  Cbaplineu  Conant,  Mo.  594  (§  23);  Heimstreet  v.  How- 
3  AV.  Va.  507;  Haydon  v.  Crawford,  land,  5  Den.  68;  Dunham  v.  Rogers, 
3Up.  Can.  Q.  B.  (oldser.)5S3;Hawley  1  Barr,  255;  England  v.  England,  1 
V.  Dixon,  7  Up.  Can.  Q.  B.  218;  Great  Baxter,  108;  Felton  v.  Deall,  22  Vt. 
Western  R'y  v.  Preston  &  Berlin  170;  Bowyer  v.  Anderson,  2  Leigh 
R'y,  17  id.  477.  (Va.),  550;  Chapline  v.  Conant,  3  W. 

1  McDonnell  v.  Battle   House  Co.,     Va.  507  (§  23).      Contra,  that  a  lia- 
67  Ala.  90;  42  Am.  Rep.  99;  Parker    bilityas  partners  to  third  persons  is 
V.  Fergus,  43  111.  437:  Smith  v.  Van-    thereby  created.      Buckner  v.  Lee, 
derburg,    46     111.    34;     Bridges    v.     8  Ga.  2S5 ;  Dalton  City  Co.  u  Dalton 
SpraguG,   57   Me.    543 ;  Reynolds  v.     Mfg.  Co.  33  id.  243 ;  Dalton  City  Co. 
Toppan,    15   Mass.     370;    Cutler    v.     r.  Hawes,  37  id.  115. 
Wiusor,  6  Pick.   335 ;  17   Am.    Dec.        2  Parker  v.  Fergus,  43  111.  437. 
385;  Holmes  v.  Old   Colony  R.  R.  5        3Keiserv.  State,  58  Ind.  379. 
Gray,  58;  Beecher  v.  Bush,  45  Mich. 

62 


TESTS  OF  A  PARTNERSHIP.  §  47. 

pany  does  not  become  a  partner  thereby  even  as  to  third  persons, 
for  the  lessee  pays  all  the  bills,  owns  the  supplies  bought  aad  the 
money  taken  in.* 

The  owner  of  a  ferry  leased  it  to  F.  for  two  years  for  $1,000  cash 
paid,  and  if  the  net  profits  do  not  produce  to  F.  §2,000  in  the  two 
years,  he  to  have  the  right  to  hold  over  until  he  gets  $2,000,  and  if 
over  82,000  is  produced  in  two  years  the  surplus  to  be  divided.  This 
was  held  not  a  partnership,  and  the  lessor  therefore  not  liable  for 
a  loss  by  F.'s  negligence  in  operating  the  ferry.* 

§  47.  Profits  as  interest  on  loans. —  The  English  courts 
prior  to  Cox  v.  Hickman,  while  recognizing  that  the  payment 
of  salary  or  wages  or  compensation  for  the  use  of  property 
in  'an  amount  measured  by  a  proportion  of  profits  did  not 
create  a  partnership,  did  not  extend  the  principle  to  com- 
pensation for  the  loan  of  money.  ^  It  would  seem  that  there 
is  no  difference  between  paying  for  the  use  of  money  at  a 
rate  determinable  by  results  and  the  use  of  services  or  prop- 
erty, yet  the  fact  that  such  compensation  produced  in  the 
fi.rst  cases  an  interest  in  excess  of  the  usury  laws,  seems  to 
to  have  been  the  cause  of  the  disallowance  of  it.  This  is 
altered  now  in  England,  not  onl}'-  by  the  later  decisions,* 

1  Holmes  v.   Old  Colony  R.   R.  5  Del.  Ch.  198;  Slade  u  Paschal,  67  Ga. 

Gray,  58.  541;  Niehoff  v.  Dudley,  40  111.  406; 

^Bowyer    v.  Anderson,   2    Leigh  Smith    v.    Vanderburg,    46    id.    34; 

(Va.),  550.  Lintner  v.  Millikin,  47  id.  178 ;  Adams 

3  Grace  v.  Smith,  2  Wm.  Bl.  998;  v.  Funk,  53  id.  219;  Hefner  v.  Palmer, 

Gilpin  V.  Enderbey,  5B.  &  Aid.  954;  67  id.  161;  Smith  v.  Knight,  71  id. 

Fereday  V.  Hordern,  Jac.  144;  Blox-  148;  22  Am.  Rep.   94;    Williams  v. 

ham  V.  Pell,  2  Wm.  Blacks.  999.  Soutter,  7  Iowa,  435;  Bailey  v.  Clark, 

*  Pennsylvania  also  has  such  a  stat-  6  Pick.  372 ;  Gallop  v.  Newman,  7  id. 

ute.  Moore  u.  Walton,  9  Bankr.  Reg.  282;    Wall  v.   Balcom,  9  Gray,    92; 

402;    Be    Francis,    2   Sawy.    286;    7  Buck  v.  Dowley,  16  id.  555;  Rice  v. 

Bankr.  Reg.  359 ;  Re  Ward  (U.  S.  D.  Austin,    17  Mass.    197 ;    Emmons  v. 

C.    Tenn.    1879),    8    Reporter,    136;  Westfield  Bank,  97  id.  230;  Parchen 

Swann  v.  Sanborn,  4  Woods,  C.  C.  v.  Anderson,  5  Montana,  438 ;  Muzzy 

625 ;  Meehan  v.  Valentine,  29  Fed.  v.  Whitney,  10  Johns.  226 ;  Osbrey  v. 

Rep.  276;  Smiths.  Garth,  32  Ala.  368;  Reimer,   49    Barb.    265;    Manhattan 

Culley  V.  Edwards,  44  id.  423;    Le  Brass  Mfg.   Co.  v.  Sears,  1  Sweeny, 

Levre  v.  Castagnio,   5  Colorado,  564;  426 ;  Salter  v.  Ham,  31  N.  Y.  321 ;  Ar- 

Parker  v.  Canfield,  37  Conn.  250;   9  nold  u.  Angell,  62  id.  508;  Richard- 

Am.  Rep.  317 ;  Plunkett  v.  Dillon,  4  son  v.  Hughitt,  76  id.  55 ;  Eager  v. 

63 


§18. 


NATURE  AND  FORIMATION. 


but  by  a  statute  called  Bovill's  act.  Nor  are  they  partners 
as  to  third  persons.^ 

§  48. illustrations. — M.  furnislied  P.  with  money  to  carry 

on  business,  and  as  compensation  P.  was  to  let  M.  have  goods  at  cost 
prices,  nothing  being  said  as  to  interest  or  profits  and  losses.  This 
was  held  not  to  constitute  them  jpartners  as  to  third  persons,  but 
to  be  a  mere  loan." 

N.  &  Co.  rented  part  of  their  business  to  C.  &  Co.,  and  paid  part 
of  the  expense  of  keeping  their  of&ce  and  agreed  to  loan  them 
not  to  exceed  $5,000,  and  to  receive  one-third  of  their  profits  weekly 
as  interest,  with  a  clause  in  the  contract  that  they  were  not  part- 


Crawford,  id.  97;  Curry  v.  Fowler,  87 
id.  33 ;  41  Am.   Rep.  343  (aff' g,  14  J. 
&  Sp.  195) ;  Cassidy  v.  Hall,  97  N.  Y. 
159;  Harvey  v.   Childs,  28  Ohio  St. 
319;  23  Am.  Rep.  387;  Lord  v.  Proc- 
tor, 7  Phila.  630;  Irwin  v.   Bidwell, 
72  Pa.  St.  244 ;  Hart  v.  Kelley,  83  id. 
286;  Eshlemau  v.  Harnish,  76  id.  97; 
Boston,  etc.  Smelting  Co.  v.  Smith, 
13  R.  I.  27;  43  Am.  Rep.  3;  Polk  v. 
Buchanan,    5    Sneed    (Teuu.),    721; 
Cooper  V.  Tappan,  9  Wis.  361 ;  Mun- 
sou  /•.  Hall,10GranfsCh.(Up.Cau.)61. 
1  Bullen  V.  Sharp,  L.  R.  1  C.  P.  80 ; 
Ex  parte  Teunant,    6   Ch.    D.   303; 
Mollvvo,   March  &  Co.    v.   Court  of 
Wards,  L.   R.  4  P.  C.  419;    Dean  v. 
Harris,  33  L.   T.   N.  S.  639 ;  Kelly  v. 
Scotto,  49  L.  J.  Ch.  383;  42  L.  T.  N.  S. 
827;  Cully  u.  Edwards,  44  Ark.  423, 
this  was  inter  se,  but  the  principles 
laid  down  make  it  applicable  to  third 
persons  by  abolishing  the  distinction 
between  partnerships  inter  se  and  as 
to  third   persons.     Le  Levi-e  v.  Cas- 
tagnio,  5  Colorado,  564.    In  Smith  v. 
Knight,  71  111.  148  (22  Am.  Rep.  94), 
it  was  held  that  a  loan  on  interest 
and  share  of  profits  does  not  consti- 
tute a  partnership  as  to  third  per- 
sons, and  a  dictum  to  the  same  effect 
occurs  in  Hefner  v.  Palmer,  67  111. 
161.     Williams  v.   Soutter,  7  Iowa, 


433;  Parchen   v.   Anderson,   5  Mon- 
tana, 438;  Richardson  v.  Hughitt,  76 
N.  y.  55  (32  Am.  Rep.  267);  Eager  u. 
Crawford,  76  id.  97 ;  Curry  v.  Fowler, 
87  id.  33  (41  Am.  Rep.  343),  affirming 
14  Jones  &  Sp.  195 ;  Cassidy  v.  Hall, 
97  id.  159;   Magovern  v.  Robertson, 
40  Hun,    166;    Harvey   v,  Childs,  28 
Oh.  St.  319;  22  Am.  Rep.   387;  Bos- 
ton, etc.  Smelting  Co.   v.    Smith,  13 
R.  I.  27;  43  Am.  Rep.  3;  Polk  v.  Bu- 
chanan,  5  Sneed,  721. — (The  earlier 
New  York  cases  to  the  contrary  are 
the  following,  holding  such  lender  to 
be  a  partner  as  to   third    persons: 
Cushman    v.    Bailey,    1    Hill,    526; 
Everett  v.  Coe,  5  Den,  180;  Manhat- 
tan Co.  V.  Sears,  45  N.  Y.  797;  Haas 
V.  Roat,  16  Hun,  526,  aff'd  26  id.  632; 
Leggett  V.  Hyde,  58  N.   Y.   272 ;  17 
Am.  Rep.  244,  aU'g  1  N.  Y.  Supreme 
Ct.  418.    These  New  York  cases  must 
be  deemed  overruled    by  the  later 
ones  given  above  in  so  far  as  incon- 
sistent.)—Bailey  V.  Clark,  6  Pick.  372 
(dictum);    Pettee    v.    Appleton,    114 
Mass.  114;  Sheridan  v.  Medara,  ION. 
J.  Eq.  469;  Pierson  v.  Steinmeyer,  4 
Rich.  L.  309 ;  Cothran  v.  Marmaduke, 
CO  Tex.  370,  373 ;  but  query,  repudi- 
ated in  Buzard  v.  Fii-st  Nat'I  Bank,  2 
S.  W.  Rep.  54,  in  full  above. 
2  Slade  V.  Paschal,  67  Ga.  541. 
64 


TESTS  OF  A  PARTNERSHIP.  §  4s. 

ners;  aud  the  execution  of  tliis  agreement  was  held  not  to  make 
them  partners,  and  therefore  not  liable  on  a  note  of  C.  &  Co/ 

A.  B.  of  one  part,  and  C,  D.,  E.  and  F.  of  the  other,  made  a 
contract  whereby  A.  B.  sold  to  C.  the  exclusive  right  to  manufact- 
ure a  patented  article,  and  also  the  stock  and  fixtures  then  on  hand 
used  for  the  purpose,  in  consideration  that  thirty-seven  and  one- 
half  per  cent,  of  the  net  profits  be  paid  them.  D.,  E.  and  F. 
agreed,  in  order  that  profits  might  be  made,  to  put  in  $15,000  as 
capital;  to  employ  C.  as  superintendent,  he  to  be  paid  a  certain 
compensation  out  of  the  business  for  superintendence;  D.,  E.  and 
F.  also  covenant  that  A.  and  B.  shall  have  thirty-seven  and  one- 
half  per  cent,  of  the  profits  after  deducting  expenses  and  twenty 
per  cent,  to  them  on  their  capital.  In  an  action  against  them  all 
on  a  note  made  by  C,  D.  claiming  that  he  was  not  a  partner,  it 
was  held  that  A.  and  B.  are  mere  creditors,  as  being  vendors  and 
having  no  community  of  interest;  that  D.,  E.  and  F.  were  lenders; 
they  had  not  furnished  the  capital  on  joint  account  and  had  no 
share  of  the  profits.^ 

E.  and  K.  agreed  to  furnish  B.  with  money  not  exceeding 
$10,000,  to  enable  him  to  make  horse-rakes,  B.  to  sell  theoi  and  all 
proceeds  to  be  paid  to  E.  and  K.  until  the  advances  were  refunded. 
This  does  not  make  them  partners  as  to  third  persons,  for  B.  was  to 
hand  over  the  proceeds  only  in  payment.  That  the  plaintiff,  who 
had  been  furnishing  the  material  to  B.,  on  seeing  the  agreement 
thereafter  charged  material  to  B.  &  Co.,  supposing  E.  and  K.  had 
become  partners,  makes  no  difference.^ 

B.  and  P.,  on  September  2,  1867,  loaned  T.  810,000,  T.  agreeing 
to  pay  it  back  on  January  1,  1870,  and  to  pay  them  thirty  cents 
per  barrel  on  oil  refined  by  him,  and  to  keep  accurate  accounts,  and 
to  open  new  books,  and  not  to  sell  or  incumber  his  refinery,  nor 
pursue  a  speculative  business,  nor  to  agree  to  sell  refined  oil  with- 
out having  first  secured  the  crude  material  from  which  to  make  it, 
and  to  keep  his  refinery  insured.  B.  and  P.  were  held  not  to  be 
liable  as  partners  to  T.'s  creditors,  for  B.  and  P.  had  no  lien  and 
must  come  in  iwo  rata  with  other  creditors,  and  the  fact  that  they 
had  a  mortgage  from  T.  so  as  to  get  a  priority,  and  that  the  loan 
was  usurious,  does  not  change  their  relation  from  creditors  to  part- 
ners.    And  so,  although  had  the  plaintiff  known  of  the  agreement 

1  Niehoff  V.  Dudley,  40  111.  406.  3  Eshleinau  v.  Harnish,  76  Pa.  St.  97. 

2  Smith  V.  Vauderburg,  4G  111.  34.       See,  also,  Hart  v.  Ivelley,  S3  Pa.  St.  286, 

Vol.  1  —  5  65 


§50. 


NATURE  AND  FORMATION. 


and  trusted  tliem  as  partners  on  the  faith  of  it,  it  mip^ht  have  con- 
stituted them  such  by  hoklinj^  out.' 

§  40.  What  is  a  loan.— The  facfc,  however,  that  the  in- 
terest expected  or  received  is  disproportionate  and  ths  con- 
tract usurions  will  not  affect  its  construction."'^ 

To  constitute  a  loan,  the  money  advanced  must  be  return- 
able in  any  event  independently  of  the  success  or  non- 
success  of  the  business  or  the  making  of  profits.  If  the 
repayment  is  contingent  upon  profits  it  is  not  a  loan,  for  it 
is  then  made,  not  upon  the  personal  responsibility  of  the 
borrower,  but  upon  the  security  of  the  business,  and  the 
above  principles  do  not  apply.  ^ 

§  50.  when  a  device. —  And  if  it  appears  that  the 

transaction  is  a  device  to  obtain  the  benefits  of  a  partnership 
without  its  responsibilities,  as  where  the  powers  are  incon- 
sistent with  the  lending  of  money,  the  contract  is  one  of 
partnership,  whatever  the  parties  may  call  it.* 


1  Irwin  V.  Bidwell,  72  Pa.  St.  244. 

2  Pluukett  V.  Dillon,  4  Del.  Ch.  198; 
Richardson  v.  Hughitt,  76  N.  Y.  55; 
32  Am.  Rep.  267 ;  Cuiry  v.  Fowler, 
87  id.  33 ;  41  Am.  Rep.  343  (aflf.  14  J.  & 
Sp.  195);  Irwin  v.  Bidwell,  72  Pa. 
St.  244.  Contra,  Hargrave  v.  Conroy, 
19  N.  J.  Eq.  28L  283;  Oppenheimer 
V.  Clemmons,  18  Fed.  Rep.  886.  See 
Brigham  v.  Dana,  29  Vt.  1,  8;  Be 
Francis,  2  Sawy.  286 ;  7  Bankr.  Reg. 
359  (§23);  Parker  v.  Canfield,  37 
Conn.  250  (9  Am.  Rep.  317);  in  this 
case  C.  and  H.  each  agreed  to  put 
$5,000  into  Andrews'  business  and 
receive  each  one-sixth  of  the  net 
profits,  the  business  to  be  in  the 
name  and  under  the  sole  manage- 
ment of  Andrews.  After  the  money 
had  been  advanced  and  the  business 
conducted  for  a  time,  C.  and  H. 
learned  that  they  were  partners. 
Thereupon  a  writing  was  drawn  up 
declaring  the  money  to  be  a  loan  to 
Andrews  and  was  to  be  j^aid  back  in 


tliree  years,  and  six  per  cent,  interest 
was  to  be  paid  annually,  and  in  con- 
sideration of  the  trouble  and  expense 
of  getting  the  money,  C.  and  H. 
were  each  to  have  a  sum  equal  to 
one-sixth  of  the  profits,  but  only  as 
compensation.  It  was  held  that  the 
one-sixth  of  the  profits  to  each  was 
for  services  already  performed,  and 
was  wholly  disproportionate  to  the 
insignificant  trouble  of  getting  the 
loan ;  that  the  arrangement  was  a 
mere  sham,  and  C.  and  H.  were  liable 
as  partnei's. 

This  decision  was  doubted  in  Rich- 
ardson V.  Hughitt,  76  N.  Y.  55 ;  33 
Am.  Rep.  267. 

^Ex  parte  Delhasse,  7  Ch.  D.  511 ; 
Pooley  V.  Driver,  5  Ch.  D.  458;  Har- 
ris V.  Hillegass,  54  Cal.  463;  Wood 
V.  Vallette,  7  Oh.  St.  172 ;  Brigham 
V.  Dana,  29  Vt.  1,  7;  Rosenfeld  r. 
Haight,  53  Wis.  260;  40  Am.  Rep. 
770. 

*Ex  parte  Mills,  8  Ch.    D.    569, 


TESTS  OF  A  PARTNERSHIP.  §  5'J. 

The  firm  of  Charles  Barrett  &  Co.  was  formed  for  a  term  of  four- 
teen years  between  B.  and  H.,  who  were  to  contribute  certain 
shares  of  capital  and  carry  on  the  business;  the  rest  of  the  capital 
was  to  be  contributed  by  other  persons  by  way  of  loan  in  shares 
of  £500  each,  which  was  to  be  paid  back  preferentially  on  dissolu- 
tion, but  any  excess  of  profits  received  during  the  terra  by  the 
contributors  over  the  total  profits  realized  was  to  be  refunded,  not 
exceeding,  however,  the  original  contributions.  The  contributors 
were  parties  to  the  deed  of  partnership,  a  clause  of  which  was  that 
the  capita]  should  be  employed  in  the  business  and  should  not  be 
drawn  out  during  the  continuance  of  the  partnership,  thus  en- 
titling the  contributors  to  control  its  employment  by  preventing 
a  diversion  of  it  from  the  business,  which  is  not  consistent 
with  the  ordinary  position  of  lenders  or  with  a  personal  demand. 
To  this  partnership  the  defendants  loaned  £2,500,  reciting  that 
the  loan  was  made  under  an  act  of  parliament  providing  that 
lenders  of  money  payable  in  profits  in  lieu  of  interest  should  not 
be  considered  partners.^  The  loan  was  to  last  for  the  term  of  the 
partnership.  The  defendants  were  to  receive  a  proportion  of 
profits  in  lieu  of  interest,  with  an  obligation  to  refund  if  profits 
annually  received  exceeded  their  share  of  the  total  profits,  thus 
compelling  a  person  assuming  to  be  a  lender  to  pay  back  a  part  ot 
his  interest  because  the  borrowers  subsequently  incur  losses.  The 
arrangement  was  held  to  be  an  elaborate  device,  an  ingenious  con- 
trivance, for  giving  the  contributors  the  whole  advantages  of  a 
partnership  without  subjecting  them  to  any  of  the  liabilities,  and 
they  were  held  to  be  partners  and  liable  for  the  debts.'' 

H.  agreed  to  loan  to  N.  Bros.  $5,000  not  less  than  one  nor  more 
than  five  years,  at  his  option,  in  consideration  whereof  N.  Bros, 
agreed  to  give  their  whole  time  to  the  business,  keep  accurate  and 
detailed  accounts,  open  at  all  times  to  H.'s  inspection,  and  pay  H. 
three-fifths  of  the  profits  every  six  months,  guarantying  that  this 
should  amount  to  at  least  S3,000  per  annum.  As  security  for  the 
loan,  H.  was  to  have  a  lien  upon  all  the  property  of  the  firm.     N. 

574-6 ;  Bacleley  V.  Consolidated  Bank,  lender.     Such  lenders  would  not  be 

34  Ch.  D.  536.  partners     independent    of    the  act, 

1  This  act  really  seems  to  add  noth-  where  the  loan  is  not  a  device,  as  it 

iug  to  the  law  of  partnership  except  was  in  tlie  above  case, 
to  provide  that  on  distribution  the        2pooley  u  Driver,  5  Ch.  D,  453. 
creditors  must  be  paid  before  the 

67 


§  52  NATURE  AND  FORIMATION. 

Bros,  agreed  to  contract  no  debts  outside  of  the  business  and  to 
use  no  funds  except  for  their  support.  Any  violation  was  to  end 
the  loan,  and  thereupon  H.  could  take  possession  and  sell  to  repay 
all  sums  due  hira.  H.  was  Jield  to  be  a  partner  and  liable  upon  a 
note  made  by  N.  Bros.,  on  the  ground  that  he  had  an  interest  in 
the  profits  as  profits,  for  he  could  claim  three-fifths  specifically  and 
could  insist  on  an  accounting  and  division  of  profits,  and  N.  Bros, 
could  not  use  the  funds  except  for  support,  showing  they  were  not 
sole  proprietors,  and  there  was  no  provision  for  repaying  the  ad- 
vance except  on  violating  the  agreement.  The  court  cite  Leggett 
V.  Hyde,  58  N.  Y.  272,  as  being  analogous.' 

§  51.  Executors  or  trustees  as  partuers. —  Under  the  older 
English  law  an  executor  or  trustee  who  received  part  of  the 
profits  in  his  representative  capacity,  and  without  personal 
interest,  but  in  pursuance  to  instructions  of  the  will,  and 
without  active  participation  in  the  business,  was  liable  as  a 
partner  to  third  persons.^ 

This  rule  was  so  great  a  hardship  upon  the  executor  that 
he  could  not  be  compelled  to  come  into  the  partnership  in 
the  testator's  place,  although  the  decedent  and  his  copart- 
ners had  covenanted  that  death  should  not  dissolve  the  firm, 
and  although  the  estate  might  be  liable  for  breach  of  cove- 
nant by  reason  of  the  executor's  withdrawal,  and  the  exec- 
utor is  entitled  to  a  decree  for  dissolution.' 

§  52.  without  active  participation. —  If  the  executor 

merely  leaves  the  assets  in  the  business,  but  does  not  person- 
ally engage  in  it,  he  is  not  a  partner,  dormant  or  otherwise, 
nor  responsible  to  creditors,  for  he  is  not  a  principal,  and  the 
surviving  partners  are  not  his  agents,  and  the  principles  of 
Cox  V.  Hickman  apply,*  even  though  he  intentionally  leaves 

iRosenfeld  v.  Haight,  53  AVis.  260  sPigott  v.  Bayley,  McCl.  &Y.  569; 

(40  Am.  Rep.  770).  Madgvvick  v.  Wimble,  6  Beav.  495; 

2  Barker  v.    Parker,   1   T.   R.   287;  Downs  u  Collins,  6  Hare,  418;  Page 

Wightmanr.Townroe,  IM.  &S.  412;  v.  Cox,  10  id.  163;  Edgar  v.  Cook,  4 

Labouchere  v.  Tupper,  11  Moo.  P.  C.  Ala.  588;  Phillips  v.  Blatchford,  137 

198;  Ex  parte  Garland,  10  Ves.  110;  Mass.  510;  Berry  v.  Folkes,  CO  Miss. 

In  re  Leeds  Banking  Co.  L.  R.  1  Cli.  57G,  G13;  Jacquinu.  Buisson,  11  How. 

App.  231 ;  Wild  v.  Davenport,  48  N.  Pr.  385. 

J.  L.  129.  < Holme  v.  Hammond,  L.  R.  7  Ex. 

68 


TESTS  OF  A  PARTNERSHIP.  §  53. 

them  in  as  a  more  or  less  permanent  investment  under  in- 
structions in  the  will,^ 

This  doctrine  was  apphed,  altliougli  an  executor  entered  into 
written  articles  of  partnership  with  the  surviving  partners  and  a 
third  person  who  was  taken  in  as  partner,  but  the  executor  was  not 
by  the  agreement  to  take  any  part  or  exercise  any  control  in  the 
business,  and  never  did  so,  and  was  held  not  liable  as  a  partner.  In 
construing  the  articles  of  partnership  the  court  look  to  the  will  to 
ascertain  if  he  is  acting  under  its  powers  and  not  of  his  own  motion.' 

Some  authorities  use  language  implying  that  involuntarily  leav- 
ing the  assets  in  the  business,  not  permissively  as  by  mere  failure 
to  compel  a  winding-up,  but  by  contract  with  the  surviving  part- 
ners, in  compliance  with  the  will,  differs  from  voluntarily  leaving 
them  in  as  an  investment,  and  that  in  the  latter  case  the  executor 
is  personally  liable  to  subsequent  business  creditors,  the  estate 
not  being  liable,^  But  in  fact  so  much  of  the  estate  as  is  embarked 
in  the  business  would  be  liable,  whether  rightly  or  wrongly  there, 
and  no  other  part  of  it  would  be;  hence  this  distinction  does  not 
exist.  The  executor's  liability  for  such  unauthorized  use  of  the 
assets  is  to  the  distributees  of  the  individual  estate  who  have  suf- 
fered the  loss,  but  his  authority  or  want  of  authority  cannot,  on 
principle,  affect  his  relation  to  business  creditors.  The  subject  of 
continuance  of  partnership  after  death  by  will  or  contract  is  con- 
sidered further  on  (§§  598-605). 

§  53.  participation  ill  the  business. —  But  if  the  exec- 
utor engages  personally  in  the  husiness,  though  acting  in 
conformity  to  the  will  or  to  the  partnership  articles,  which 
provide  for  his  admittance  into  the  firm  in  the  decedent's 
place,  he  is  then  a  principal  and  personally  liable  for  debts 
thereafter  incurred.* 

218;  Wild  V.  Davenport,  48  N.  J.  L.  373;  9  Abb.  Pr.  (N.  S.)  263;  39  How. 

129;  Avery  v.   Myers,    60  Miss.  367;  Pr.   82;   Phillips  v.   Blatchford,  137 

and  see  Brower  v.  Creditors,   11  La.  Mass.  510,  514. 

Ann.  117.  2  Owens  v.  Mackall,  33  Md.  382, 

1  Holme  V.  Hammond,  L.  R.  7  Ex.  3  Citizens'  Mut.  Ins.  Co.  v.  Ligon, 

218;   Price    v.    Groom,    2    Ex.    512;  59  Miss.  305,  314;  Richter  u  Poppen- 

Wild    V.    Davenport,    48  N.    J.    L.  hausen,  42  N.  Y.  373;  Avery  r.  My- 

129:  Owens  v.  Mackall,  33  Md.  382;  ers,  CO  Miss.  367;  Owens  v.  Mackall, 

Brastield   v.    French,    59   Miss.    032 ;  33  Md.  382. 

Richter  v.  Poppenhausen,  42  N.  Y.  ■*  Alsop  v.  Mather,  8  Conn.  584;  21 

69 


§  54.  NATUEE  AND  FORMATION. 

A  mere  request  to  a  dealer  with  tlie  firm  to  contiune  the  fulfill- 
ment of  a  contract  for  which  the  estate  is  already  chargeable  is  not 
taking  part  in  the  business. 

Thus,  where  a  contract  for  goods  has  been  but  partially  filled  at 
the  time  a  partner  died,  the  request  by  his  executor  to  the  seller  to 
continue  delivery  under  the  contract  to  the  surviving  partner,  and 
a  promise  to  pay  as  soon  as  the  estate  is  settled,  and  stating  that 
the  business  is  going  on,  does  not  make  the  executor  jointly  lial)le 
or  show  that  he  is  a  partner,  but  is  a  mere  promise  to  pay  the 
amount  chargeable  to  the  estate.' 

If  the  widow  and  next  of  kin  advance  further  capital  and  make  a 
new  agreement  with  the  surviving  partner  as  to  the  proportion  of 
profits  for  each,  this  is  not  a  continuance  of  the  old  concern,  but  a 
new  partnership,  and  all  are  liable  to  third  persons.* 

A  direction  in  a  will  that  one  of  the  executors  carry  on  the  tes- 
tator's business  in  his  own  name,  and  when  the  heir  comes  of  age 
deliver  him  the  business  and  half  the  profits,  does  not  make  the  ex- 
ecutor a  partner.  He  is  trustee,  and  if  he  continues  business  after 
the  majority  of  the  heir  under  a  power  of  attorney  from  him,  he  is 
agent  or  trustee  still  and  not  partner.' 

§  54.  Otlier  representatives. —  A  parent  may  bona  fide  put 
money  into  a  concern  as  his  infant  son's  share  of  capital,  un- 
der an  agreement  that  the  son's  share  of  the  profits  during 
minority  shall  be  accounted  for  to  the  father;  and  if  it  was 
not  the  intention  of  the  parties  that  the  father  shall  be  a 
partner,  he  will  not  be  liable  as  such.* 

On  the  other  hand,  if  the  father  in  fact  puts  in  his  own 
money  and  reserves  the  same  control  of  the  business  that  the 
son  would  have  had  if  present  and  of  age,  and  appropriates 
the  profits  to  his  own  use,  he  may  be  held  as  the  actual  part- 
ner, although  he  signs  the  articles  for  his  son  as  his  guard- 
ian, but  without  authority.^ 

Am.   Dec.    703 ;  Wild  v.  Davenport,  3  Gibson  v.  Stevens,  7  N.  H.  352. 

48  N.  J.   L.  129;  Citizens'  Mut.  Ins.  4  Barklie  v.  Scott,  1   Huds.  &  Br. 

Co,  V.  Ligon,  59  Miss.  305;  Gibson  v.  83.  This  case  was  approved  in  Owens 

Stevens,  7  N.  H.  352,  356.    See  Kreis  v.  Mackali,  53  Md.  382. 

V.  Gorton,  23  Oh.  St.  468.  »  Miles  v.  Wann,  27  Minn.  56.  Or  if 

1  Richter  v.  Poppenhausen,  42  N.  he  appears  as  the  partner  to  the 
Y.  373;  9  Abb.  Pr.  (N.  S.)  263.  world,  Williams  u.  Rogers,  14  Bush, 

2  Delanej  v.  Dutcher,  23  Minn.  373.  776. 

70 


TESTS  OF  A  PARTNERSHIP,  §  55. 

And  if  a  person  buys  an  interest  in  a  firm  for  the  benefit 
of  another,  but  the  contract  between  them  is  such  that  the 
second  person  is  to  buy  from  the  other  instead  of  taking  the 
original  purchase,  the  other  must  be  deemed  the  partner. 

Thus,  where  the  property  of  the  Phoenix  Metre  Co.,  a  partner- 
ship, Avas  represented  by  four  shares,  of  which  Slaney  held  two  and 
T.  the  other  two,  and  T.  agreed  to  sell  his  two  shares  to  Slaney, 
wlio,  not  having  the  money,  procured  Starr  to  buy  them  in  his, 
Slaney's,  name,  agreeing  to  repurchase  from  him  at  an  agreed  ad- 
vance within  a  certain  time,  to  secure  which  agreement  he  exe- 
cuted a  mortgage  to  Starr,  here  it  was  held  that  the  beneficial 
interest  and  ownership  of  the  shares  bought  in  Slaney's  name 
passed  to  Starr,  for  the  mortgage  was  not  to  pay  a  debt  but  to  se- 
cure a  contract  of  purchase,  and  partnership  creditors  must  be  paid 
on  distribution  before  Starr/ 

§  55.  Annuitants. —  Under  the  old  law  a  person  receiving 
an  annuity  out  of  profit  of  a  business  was  liable  as  a  partner 
merely  because  sharing  part  of  the  profits,  although  not  one 
inter  se.^ 

All  this  is  of  course  contrary  to  the  modern  doctrine  in 
Cox  V.  Hickman,  besides  being  the  subject  of  act  of  parlia- 
ment.    (See  §  21.) 

And  now  where  a  testator  desires  his  assets  to  continue  in 
business,  and  that  dividends  of  profits  be  paid  to  beneficiaries 
of  his  will,  the  beneficiaries  of  the  dividends  are  not  part- 
ners, but  receive  them  in  lieu  of  interest  on  their  money.  ^ 

And  upon  the  subsequent  bankruptcy  of  the  firm  such 
bona  fide  dividends  cannot  be  recovered  back.* 

1  Starr  v.  Dugan,  22  Md.  58.  instead.     Goddard  v.  Hughes,  1  Cr. 

2  Bloxham  v.  Pell,  cited  in  2  W.  BI.     &  M.  33. 

999;  £'a;parie  Chuck,  8  Bing.  469;  Jji  3  Jones  ij.  Walker,  103  U.  S.  444; 
reColbeck,  Buck,  48;  Exj^arteJIam-  Pitkin  v.  Pitkin,  7  Conn.  307;  18  Am.  *: 
per,  17  Ves.  403,  412;  Bond  v.  Pit-  Dec.  Ill;  Heighe  v.  Littig,  63  Md. 
tard,  3  M.  &  W.  357.  And  where  301 ;  Philips  v.  Samuel,  76  Mo.  657. 
an  executor  was  held  to  be  a  partner  Contra,  Naveu.  Sturges,  5  Mo.  App. 
it  was  said  that  his  cestuis  que  trust-    557. 

ent  could  have  been  held  as  such        <  Jones  v.  "Walker,  supra;  Pitkin 

V,  Pitkin,  supi^a. 
71 


§  56.  NATURE  AND  FORMATION. 

m.    SHARING  PROFITS  ^VITH  STIPULATION  AGAINST  LOSSES. 

§  5G.  The  fact  that  in  a  contract  for  sharing  profits  a 
stipulation  is  added  that  losses  shall  not  be  divided  does  not 
change  the  presumptive  character  of  the  contract  as  one  of 
partnership.  Such  a  stipulation  is,  of  course,  perfectly 
legal.  ^ 

Inasmuch  as  partners  may  agree  that  some  of  their  num- 
ber shall  be  indemnified  or  guarantied  against  loss,  such  a 
stipulation  between  parties  does  not  prevent  their  contraoi; 
being  one  of  partnership  if  it  would  otherwise  be  such.^ 

A  writing,  "  Received  of  Gr.  &  Co.  $2,000  to  invest  in  wool.  Said 
Gr.  &  Co.  to  receive  two-thirds  of  t]^e  net  profits  on  the  sale,  and  0. 
S.  one-third,"  signed  0.  S.,  was  held,  in  an  action  to  compel  0.  S. 
to  share  a  loss,  not  to  establish  a  partnership  infer  se,  because  there 
was  no  sharing  of  loss  intended.' 

A  person  receiving  a  fixed  salary  without  share  of  profits  was 
held  to  be  a  partner,  such  being  the  intention.  In  that  case  A.  de- 
sired a  partner,  so  that  there  would  be  some  one  to  close  up  in  case 

1  Gilpin  V.  Enderbey,  5  B.  &  A.  selling  filters  invented  by  S.,  W.  to 
954;  Bond  v.  Pittard,  3  M.  &  "W.  357;  furnish  all  the  money,  conduct  the 
Fereday  v.  Hordern,  Jac.  144;  Haz-  business  in  his  own  name,  keep  books 
ard  V.  Hazard,  1  Story,  C.  C.  371,  374.  open  to  S.'s  inspection,  and  to  have 

2  Bond  V.  Pittard,  3  M.  &  W.  357;  one-third  of  the  net  profits,  S.  agree- 
Geddes  v.  Wallace,  2  Bligh,  270;  ing  to  inder^nify  W.  against  loss  for 
Brown  v.  Tapscott,  6  M.  &  W.  119;  four  months,  and  at  the  end  of  a  year 
Pollard  V.  Stanton,  7  Ala.  7G1 ;  Camp  S.  was  to  assign  to  "W.  one-third  of 
V.  Montgomery,  74  Ga.  (1886);  Con-  the  patent.  At  the  end  of  the  four 
solidated  Bank  v.  State,  5  La.  Ann.  44;  montiis  W.  gave  up  business  and 
Bobbins  v.  Laswell,  27  111.  365  (§  35) ;  sued  S.  for  losses.  S.  contended  that 
Rowland  v.  Long,  45  Md.  439;  Bank  there  was  a  partnership,  and  there- 
of Rochester  v.  Monteath,  1  Den.  fore  an  accounting  must  be  had.  It 
402;  43  Am.  Dec.  681;  Walden  v.  was  held  as  above;  but  there  being 
Sherburne,  15  Johns.  409.  Contra,  clauses  consistent  only  with  the 
that  if  one  guaranties  the  other  theory  of  a  partnership,  that  contract 
against  loss,  there  cannot  be  a  part-  was  said  to  be  at  most  one  wliich 
nership,  and  that  sharing  of  losses  would  ripen  into  a  partnership  at 
is  necessary  to  constitute  a  partner-  the  end  of  the  four  months  if  S.  did 
ship,  Whitehill    v.  Shickle,   43  Mo.  not  then  cense  business. 

537.     In  this  case  W,  agreed  with  S.        siiuddick  v.  Otis,   33   Iowa,    403; 
to  give  his  whole  time  to  making  and    Marstou  v.  Gould,  69  N.  Y.  220. 

73 


'      TESTS  OF  A  PARTNERSHIP.  §  57. 

» 

of  liis  deatli,  and  agreed  to  take  in  B.  as  a  partner  on  a  salary  for 
the  first  year,  and  a  share  of  profits  thereafter.  Their  written  agree- 
ment recited  a  partnership  formed  that  day,  and  they  acted  and 
contracted  as  partners.  On  A.'s  death,  within  the  year,  B.  was  held 
to  have  the  rights  of  surviving  partner.' 

A  person  who  has  notice  that  no  personal  responsibility  is  to  be 
incurred  by  one  of  the  parties  cannot  hold  him  liable  as  a  partner.* 

§  57.  Sharing  losses  only. —  Arrangements  between  par- 
ties are  sometimes  made  for  sharing  of  losses  only.  These 
are  not  partnerships  inter  se,  and  are  only  such  to  third  per- 
sons if  there  is  a  holding  out.  If  the  arrangement  is  merely 
to  share  an  expense  of  keeping  property,  as  where  two  joint 
owners  of  a  horse  agree  in  writing  that  one  shall  keep  him 
for  a  certaiil  time,  the  expense  to  be  divided,  they  are  not 
partners  inter  se,  though  they  call  themselves  such,  and  an 
action  at  law  lies  for  contribution  of  outlays.' 

If  the  arrangement  is  in  relation  to  an  enterprise  for  profit, 
the  agreed  exclusion  of  some  of  the  parties  from  sharing  the 
benefit,  though  they  share  losses,  makes  it  a,  societas  leonina, 
and  it  is  not  a  proper  partnership.* 

An  agreement  between  two  railroad  corporations  that  any  loss  to 
persons  or  goods,  not  traceable  to  either  road,  each  should  pay  in 
proportion  to  its  share  of  the  freight,  does  not  constitute  them  part- 
ners nor  give  third  persons  new  rights,  but  merely  furnishes  a  rule 
for  settlements  between  themselves.^ 

On  the  other  hand,  however,  where  Gr.  in  writing  allowed  L.  to 
use  their  joint  names  as  a  firm  name  and  to  purchase  and  sell  goods, 
G.  not  claiming  any  of  the  profits,  but  seven  per  cent,  was  to  be 

1  Adams  Bank   v.    Rice,    3  Allen,  <  £owry  u  Brooks,  2  McCord.  421 ; 

480.  Bailej'  v.  Clark,  6  Pick.  372 ;  Moss  v. 

2Burritt  v.  Dickson,  8  Cal.  113;  Jerome,  10  Bosw.  220;  Ala.  Fertil- 
Bailey  v.  Clark,  6  Pick.  372 ;  Edgerly  izer  Co.  v.  Reynolds  &  Lee,  79  Ala. 
V.  Gardner,  9  Neb.  130;  Beudel  v.  497.  Hence  nominal  partners  are 
Hettrick,  35  N.  Y.  Superior  Ct.  405;  not  partners  tnferse,  Jones  v.  How- 
Jordan  V.  Wilkins,  3  Wash.  C.  C.  ard,  53  Miss.  707. 
110.  SAJgen  v.  Boston  &  Maine   R.  R. 

3  Oliver  v.  Gray,  4  Ark.  425;  Ala.  132  Mass.  423;  and  see  Irvin  v.  Nash- 

Fertilizer  Co.  v.  Reynolds  &  Lee,  79  ville,  Cliat.  &  St.  L.  R'y  Co.  92  lU.  103 

.Via.  497.  (34  Am.  Rep.  116). 

73 


§  u9.  NATURE  AND  FORMx\TION. 

paid  on  his  advances  to  tlie  firm,  it  was  lield  on  the  death  of  L. 
that  G-.  could  sue  as  surviving  partner  for  debts  due  to  the  firm.* 

IV.    SHARING  GROSS   RECEIPTS. 

§  58.  An  agreement  to  share  the  gross  receipts  does  not 
constitute  a  partnership  where  there  is  no  common  stock  or 
joint  capital.  If  all  the  partners  have  united  their  separate 
stocks  of  goods  for  the  convenience  or  benefit  of  a  joint  sale, 
and  the  proceeds  of  sale  leave  a  deficiency  over  the  original 
outlay,  there  may  be  a  loss  to  each,  or,  if  a  surplus,  there  is 
a  gain  to  each;  but  there  is  a  mere  tenancy  in  common  and 
not  a  partnership.  On  the  other  hand,  if  there  is  a  joint 
business,  or  a  capital  or  common  stock,  the  division  of  the 
product  in  kind  is  as  much  a  sharing  of  profits  as  if  they 
had  sold  and  divided  the  proceeds.^  But  where  there  is  no 
common  stock  or  joint  capital  a  division  of  the  gross  receipts, 
either  arising  from  joint  labor  or  labor  upon  property  of 
another,  does  not  constitute  a  partnership,  for  it  does  not  in- 
volve the  division  of  profit  or  loss,  and  the  benefit  is  not 
dependent  on  the  success  of  the  enterprise.  The  rule  has 
been  stated  now  for  about  one  hundred  and  fifty  years, 
that  sharing  gross  profits  does  not  constitute  a  partnership; 
yet  in  truth  the  proper  explanation  of  this  class  of  cases 
seems  not  that,  but  they  rather  should  be  grounded  upon  the 
fact  that  no  idea  or  possibility  of  joint  profit  is  implicated. 

§  59.  Working-  or  letting  on  shares. —  Laborers  or  culti- 
vators who  farm  land  for  the  owner,  or  rent  it  on  shares, 
for  a  share  of  the  crops,  are  not  partners.'  So  of  persons 
agreeing  to  divide  the  fish  in  a  joint  haul;*  or  parties  agree- 
ing to  divide  a  reward  when  obtained;^  or  coach  owners 

1  Hendrick  v.  Gunn,  35  Ga.  234.  merlin,  48  id.  43o;  Giirr  v.  Martin,  73 

2Everiltu  Cliapman,  6  Conn.  347;  id.  528;  Blue  v.  Leathers,  15  III.  31; 

Brady  v.  Colhouu,   1  Pa.  140;  Jones  Front  v.  Hardin,  56  Ind.  1C5;  McLau- 

V.  McMichael,  12  Rich.  (S.  Ca.)  L.  176.  rin  v.  McColl,  3  Strob.  L.  21;  Mann 

3  Courts   V.    Happle,   49   Ala.    254;  r.  Taylor,  5  Heisk.  267 ;  Albee  v.  Fair- 

Tayloer.  Bush,  75  Ala.  432;  Christian  banks,  10  Vt.  314;  Haydon  v.  Ci-aw- 

V.  Crocker,  25  Ark.  327;  Gardenhire  ford,  3  Up.  Can.  Q.  B.  (old  ser.)  583. 
V.   Smith,   39  id.    280;   Hollo  way  v.        4  Hii-Jey  y.  Walton,  63  III.  260. 
Brinkley,  42  Ga.  226;  Smith  v.  Sum-        5  Dawson  v.  Guriey,  22  Ark.  381. 

74 


TESTS  OF  A  PARTNERSHIP. 


dividing  the  gross  receipts  of  a  line  of  coaches;^  or  seamen 
to  be  paid  in  proportion  to  the  fish  caught;-  or  a  collector  of 
wharfage  paid  by  a  share  of  gross  receipts;^  or  a  person 
agreeing  to  make  tunnels  for  a  mine  in  consideration  of  a 
part  interest  in  the  mine,  and  he  can  sue  at  law  for  non- 
payment;^ or  two  workmen  agreeing  to  divide  their  wages.' 

So  of  one  who  lets  property  for  a  proportion  of  gross  re- 
ceipts as  a  hotel;"  or  the  machinery  in  a  steamboat;^  or  a 
ferry  ;^  or  a  vessel;^  or  the  right  to  make  and  sell  a  patented 
device.^*'  So  of  the  owners  of  a  ditch  dividing  profits  on  sales 
of  water;"  or  the  proprietor  and  manager  of  a  theater  divid- 
ing gross  receipts,  the  manager  alone  finding  the  actors  and 
the  proprietor  providing  the  general  service  and  expenses;  ^^ 
or  the  owner  of  a  lighter  giving  one  who  worked  her  half 
the  gross  proceeds.  ^^ 

So  of  sailors  paid  a  proportion  of  the  oil  secured  on  a 
whaling  voyage; ^^  or  a  person  taking  out  a  cargo  belonging 


1  Eastman  v.  Clark,  53  N.  H.  276; 
16  Am.  Rep.  192. 

2  Holden  v.  French,  68  Me.  241. 

3  Mauusell  v.  Willett,  36  La.  Ann. 
323. 

4  Barber  v.  Cazalis,  30  Cal.  92. 

5  Fiuckle  v.  Stacey,  Sel.  Cas.  in  Ch. 
9;  Hawkins  v.  Mclntyre,  45  Vt.  496, 
where  they  were  to  finish  a  church 
together,  dividing  receipts,  less  ex- 
pense of  help  and  material ;  and  see 
Smith  V.  Moynihan,  44  Cal.  53,  where 
a  boiler-maker  and  a  builder  of  steam- 
engines  jointly  agreed  with  the 
owner  of  a  boat  to  put  in  an  engine. 


9  Bowman  v.  Bailey,  10  Vt.  170; 
Tobias  v.  Blin,  21  id.  544;  Cutler  v. 
Winsor,  6  Pick.  335;  17  Am.  Dec.  3S5, 

10  Wheeler  v.  Farmer,  38  Cal.  203 ; 
Gillies  V.  Colton,  22  Grant's  Ch.  (Up. 
Can.)  123. 

11  Bradley  v.  Harkness,  26  Cal.  69 ; 
but  see  Abel  v.  Love,  17  Cal.  233. 

12  Lyon  V.  Knowles,  3  B.  &  S.  556. 

13  Dry  V.  Boswell,  1  Camp.  329. 
i^Mair  v.  Glennie,  4  M.  &  S.  240; 

Wilkinson  v.  Frasier,  4  Esp.  182.  See 
Perrott  v.  Bryant,  2  Young  &  C. 
Ex.  61;  The  Frederick,  5  Rob.  Adm. 
8;   Reed  v.   Hussey,   Blatchf.  &  H. 


not  specifying  what  part  each  was  to     Adm.  525  ;  Duryee  v.  Elkins,  1  Abb. 


do  or  defining  their  relations.  The 
employee  of  one  sued  both ;  presum- 
ably they  are  not  partners. 

8  O'Donnell  v.  Battle  House  Co.  67 
Ala.  90;  43  Am.  Rep.  99;  Beecher  v. 
Bush,  45  Mich.  188 ;  40  Am.  Rep.  465 ; 
Fa-rrand  v.  Gleason,  5G  Vt.  633. 

7Knowlton  v.  Reed,  38  Me.  246. 

8  Heimstreet  v.  Howland,  5  Den.  68. 


Adm.  529;  Coffin  i;.  Jenkins,  3  Story, 
C.  C.  108;  Baxter  v.  Rodman,  3  Pick. 
435;  Grozier  v.  At  wood,  4  id.  234; 
Turnery.  Bissell,  14  id.  192;  Rice  v. 
Austin,  17  Mass.  197,  205.  See 
Bridges  v.  Sprague,  57  Me.  543; 
Holden  v.  French,  68  id.  241 ;  Moore 
V.  Curry,  106  Mass.  409;  Joy  v. 
Allen,  2  Woodb.  &  M.  303. 


T*; 


§  GO.  NATURE  AND  FORMATION. 

to  another  to  sell  and -bring  back  a  return  load  and  receive 
half  the  proceeds.^ 

§  60.  brokers. —  A  broker  who  sells  on  a  commission 

proportioned  to  the  proceeds  of  sales  is  not  a  partner,  but  an 
employee.^  And  though  his  reward  is  a  share  of  net  profits, 
as  where  a  broker  buys  commodities  with  the  funds  of  an- 
other, he  to  sell  again  and  divide  profits,  he  is  not  a  partner, 
'"  for  the  nature  of  his  occupation  shows  that  he  has  no 
ownership  in  the  commodities  and  the  power  to  sell  may  be 
revoked,  subject  only  to  a  claim  for  breach  of  contract.* 
And  where  brokers  or  commission  merchants  agree  to  divide 
commissions  with  each  other  they  are  not  made  partners 
thereby. 

Thus,  where  A.,  a  real  estate  agent,  was  employed  to  sell  defend- 
ant's land  and  took  in  B.  to  help  him,  agreeing  to  give  B.  half  the 
commission,  and  B.  sold  the  land  and  received  payment  from  the 
defendant  and  attempted  to  release  A.'s  claim  upon  the  defendant, 
it  was  held  that  he  could  not  do  so,  being  a  mere  agent  of  A., 
without  interest  in  specie  in  the  commission,  and  not  his  partner.* 

So  an  an-angement  between  commission  merchants  in  one  city 
and  their  coi-respondents  in  another,  that,  on  all  sales  of  produce 
shipped  by  the  former  to  the  latter,  part  of  the  hitter's  commis- 
sions should  he  paid  to  the  former,  is  not  a  partnership.* 

Where  the  broker  has  an  interest  in  the  capital,  as  where  he 
agrees  to  share  in  the  speculation,  which  is  thereafter  spoken  of  by 
parties  as  a  joint  purchase,  joint  concern,  etc.,  he  will  be  deemed  a 
partner  inter  se.^ 

1  Lowry  v.  Brooks,  3  McCord  (S.  ments  to  be  partnerships  as  to  third 
Ca.),  "L.  421.  persons,    see  §   16.     In    TInving    v. 

2  For  example,  see  Dillard  v.  Clifford,  136  Mass.  483,  an  agreement 
Scruggs,  3G  Ala.  G70;  and  see  the  by  a  broker  employed  to  sell  a  horse, 
cases  cited  under  §  43.  So  of  an  ex-  to  sliare'  commissions  witli  another 
partner  receiving  a  percentage  on  broker  if  he  will  procure  a  buyer, 
gross  sales  for  his  influence,  Gibson  was  said  to  constitute  tiieni  partners 
V.  Stone,  48  Barb.  385;  38  How.  Pr.  in  the  transaction.  So  that  a  fraud 
468.  by  the  latter  upon  the  owner,  where- 

3Hanna  v.  Flint,  14  Cal.  73.  by  the  owner  was  induced  to  name 

*  Wass  V.  Atwater,  83  Minn.  83.  a  price  on  a  false   basis  and  a  sale 

5  Pomeroj'  v.  Sigerson,  23  Mo.  177.     was    effected,     bars    the    innocent 

For  the  English  cases  prior  to  Cox    broker's  action  for  commissions. 

V.  Hickman,  holding  such  arrange-        ^  Reid  v.  Hollinshead,  4  B.  &  C.  867. 

76 


TESTS  OF  A  PARTNERSHIP.  §  01. 

,§  61.  though  l)oth  fiiriiisli  expenses  or  outlay. — Tlie 

fact  that  the  recipient  of  part  of  the  gross  receipts  is  to  furnish 
part  of  the  expenses  or  tools  or  material,  as  well  as  labor, 
does  not  alter  the  result.  Thus  in  cultivating  land,  where  an 
overseer  or  cultivator  is  to  furnish  part  of  the  teams  or  pay 
part  of  the  labor,  and  the  crop  is  to  be  divided,  it  is  not  a 
partnership,  but  is  a  leasing,  or  an  employment,  or  a  tenancy 
in  common  of  the  crop,  according  to  the  nature  of  the  en- 
terprise.^ 

But  the  joint  cultivation  of  land,  with  an  agreement  to 
divide  profits,  is  a  partnership.^ 

If  the  owner  of  land  agrees  with  a  person  that  he  shall  cut  the 
timber,  each  pajang  certain  of  the  expenses  and  divide  the  profits;' 
or,  if  B.  is  to  build  houses  on  A.'s  land,  the  proceeds,  deducting 
the  cost  of  the  houses  and  the  agreed  value  of  the  land,  to  be  di- 
vided, they  are  not  partners.* 

So  if  the  owner  of  a  mill  furnishes  the  mill,  and  another  con- 
tracts to  keep  a  supply  of  logs  and  the  lumber  is  to  be  divided.* 

So  if  the  owner  is  to  furnish  a  brick-yard  and  another  the  labor 
and  materials,  and  they  are  to  divide  the  brick  they  make,'  it  is  not 
a  partnership.®  Yet  in  Farmers'  Ins.  Co.  v.  Ross,'  although  the 
bricks  were  to  be  divided,  there  was  a  power  in  each  by  the  con- 
tract to  sell  them.     The  question  arose  on  an  action  against  both 

1  Moore  V.  Smith,  19  Ala.  774;  Blue  Rep.  607;  Brown  v.  Higginbotham, 

V.   Leathers,    15   111.    31 ;  Donuell  u.  5  Leigh  (Va.),  583;  27  Am.  Dec.  618. 

Harshe,  67  Mo.  170 ;  Musser  v.  Brink,  Contra,  Donnell  v.  Harsche,  67  Mo. 

(38   Mo.    242;  80   id.  350;  Putnam  v.  170. 

Wise,  1  Hill,  234 ;  Day  v.  Stevens,  88  s  st.    Denis  v.  Saunders,  36  Mich. 

N.    Ca.  83;  43  Am.  Rep.   732  (limit-  369. 

ing  Curtis  v.  Cash,  84  id.  41);  Brown  ^Bisbee  v.  Taft,  11  R.  L  307.     See 

V.  Jaquette,  94  Pa.  St.  113;  39  Am.  Kilshaw  v.  Jukes,  §  20. 

Rep.  770;  Murray  v.  Stevens,  Rich.  SHobinsonu  Bullock,  58  Ala.  618; 

Eq.   Cas.    (S.    Ca.)    205.     See,    also,  Stoallings  v.  Baker,  15  Mo.  481;  Kelly 

Clark  u.  Smith,  52  Vt.,  529;  and  Her-  v.  Gaines,  24  Mo.  App.  506;  Ambler 

manos  v.   Duvigneaud,  10  La.  Ann.  v.    Bradley,     6    Vt.    119.      But    see 

114.  Contra,  Allen  v.  Davis,  13  Ark.  Jones  iJ.  McMichael,  12  Rich.  L.  170. 

S8;  Holifield   v.  White,  52  Ga.   567;  6  Laraont  u  Fullam,  133  Mass.  583 ; 

Adams  v.  Carter,  53  Ga.  160.  Chapman  v.  Lipscomb,  18  S.  Ca.  222. 

2Urquhart  v.    Powell,  54  Ga.  29;  ^ogoh.  St.  429.     The  case  is  criti- 

Plummer  v.  Trost,  81  Mo.  425;  Rey-  cised  in  Beecher  v.   Bush,  45  Mich. 

Holds  V.  Pool,  84  N.  Ca.  37 ;  37  Am.  188,  197-8. 

77 


§  63.  NATURE  AND  FORMATION. 

for  breach  of  contract  of  sale  made  by  one  of  them.  Tlie  court  held 
there  was  a  partnership,  because  a  joint  sale,  and  not  a  separate  sale 
of  his  share  by  each,  was  contemplated,  and  that  a  division  of  arti- 
cles made  is  a  division  of  profit  and  loss.'  And  where  two  agi*eed 
to  buru  lime  on  shares,  one  to  fill  the  kiln  with  stones  and  the 
other  to  furnish  the  wood  and  burn  the  kiln,  the  lime  to  be  equally 
divided,  they  were  held  to  be  partners.'' 

§  62.  liertliiig. —  A  contract  by  which  a  person  or  per- 
sons are  to  herd  the  cattle  of  another  for  a  certain  number  of 
years,  and  then  return  the  original  number  and  divide  the  in-- 
crease,  or  pay  the  valuation  originally  placed  uf)on  the  herd 
and  divide  the  excess,  is  held  not  to  be  a  partnership  between 
the  owner  and  herders.^ 

Thus,  three  persons  made  a  contract  with  B.,  the  owner  of 
cattle,  to  herd  them  for  a  certain  time.  A  valuation  of  the  cattle  was 
agreed  upon,  and  at  the  end  of  the  period  B.  was  to  sell  the  cattle, 
retain  the  amount  of  the  valuation,  and  divide  the  excess  in  speci- 
fied proportions  between  the  three  persons.  Each  of  the  three  sup- 
ported himself  and  hired  his  own  assistants.  It  was  held  that  the 
three  herders  were  not  partners,  and  the  contract  was  one  of  em- 
ployment, under  which  each  could  bring  a  separate  action  for  serv- 
ices, though  the  language  was  joint.* 

But  if  they  are  jointly  engaged  in  the  business  they  are  partners. 

Thus,  two  persons  who  agreed  to  keep  the  sheep  of  another, 
keeping  up  the  flock  and  paying  the  owner  part  of  the  wool  and 
dividing  the  profits,  were  held  to  be  partners  inter  se,  so  far  that  the 
settlement  by  one  in  the  name  of  both,  of  a  claim  due  them  for 
breach  of  warranty  of  soundness,  bound  both.* 

§  63. tenants  in  common  dividing  returns. —  The  same 

principle  applies  where  tenants  in  common  of  property,  real 

iln  Aubroyu  Frieze,  59  Ala.  587,  ^Beckwith  v.  Talbot,  95  U.  S.  289 

crops  jointly  produced  at  joint  ex-  (s.  C.  2  Colorado,  G39). 

pense   were  to  be  divided,  but  the  5  Stapleton  v.  King,  33  Iowa,  28; 

fact  of  an  unqualified  power  of  dispo-  11  Am.  Rep.  109.    And  see  Brown  v. 

sition  in  each  was  held  to  show  a  Robbins,  3  N.  H.  64,  where  they  were 

partnership.  held  jointly  liable  to  the  owner  for 

2Musieru,  Trumpbour,  5Wend.274.  the   price    obtained   for    the    cattle 

3  Robinson   v.  Haas,    40   Cal.   474;  which  they  were  jointly  taking  to  a 

Asliby  V.  Shaw,  82  Mo.  76.  market. 

78 


TESTS  OF  A  PARTNERSHIP.  §  G3. 

or  personal,  agree  to  divide  the  returns  from  it,  or  where 
property,  labor  or  materials  are  united  to  produce  certain 
goods  which  are  to  be  divided  in  specie;  this  does  not  con- 
stitute a  partnership. 

In  the  leading  case  on  this  principle  two  persons  having  a  race 
horse  in  common  agreed  that  one  should  keep,  train  and  manage 
him  on  a  specified  weekly  allowance  for  expenses,  the  other  to  pay 
for  his  transportation  to  races  and  entrance  money,  and  the  win- 
nings to  be  divided,  and  this  was  held,  in  an  action  between  the  two 
for  his  keep,  though  perhaps  it  was  not  necessary  to  pass  on  the 
question,  not  to  be  a  partnership  inter  se.^ 

Two  persons  bought  a  circus,  and  one  contracted  with  the  other 
to  run  it  and  divide  the  income.  They  are  not  partners,  for  only 
one  was  in  the  business.  A  mere  joint  ownership  does  not  make  a 
partnership,  nor  does  dividing  an  income." 

So  an  agreement  that  A.  should  buy  the  undivided  half  of 
B.'s  land  at  half  the  cost  of  the  land,  and  of  improvements 
made  and  to  be  made,  and  divide  and  sell  it,  sharing  profits, 
and  dividing  unsold  lots,  is  not  a  partnership  inter  se.^ 

In  Bruce  v.  Hastings,  41  Vt.  380,  Hastings  had  agreed  to  buy  a 
farm  from  one  N. ;  he  then  agreed  with  Bruce  that  they  together 
would  carry  out  the  contract  and  would  sell  the  property  and  divide 
profits  equally.  Hastings  took  no  deed  from  N.,  but  had  N.  make 
deeds  direct  to  the  persons  to  whom  they  sold  lots.  Bruce  sued 
Hastings  in  assumpsit  for  half  the  profits;  and  the  defense  that  they 
were  partners,  and  hence  the  action  must  be  for  an  accounting,  was 
overruled,  and  the  contract  was  held  not  to  be  one  of  partnership, 
but  of  compensation  for  assistance  in  carr3'ing  out  a  single  specific 
purpose  or  enterprise,  or  a  tenancy  in  common,  except  that  they 
did  not  have  the  legal  title.'* 

The  leasing  of  ground  by  two,  under  an  agreement  with  the  lessor 
to  erect  a  building  upon  it,  and  the  construction  of  a  hotel  which  is 

1  French  v.  Styring,  2  C.  B.  N.  S.  4  it  will  be  hereafter  seen  that  an 
357.  action  at  law  is  frequently  allowed 

2  Quackenbush  v.  Sawyer,  54  Cal.  to  settle  partnerships  in  a  single  en- 
439.  See,  also.  Chapman  v.  Eames,  terprise;  hence  this  case  was  rightly 
67  Me.  453.  decided,  either  on  the  principles  of 

'Munson   v.  Sears,  13  Iowa,  163;    this  section  or  of  §  33. 
Sears  v.  Munson,  28  id.  380. 

79 


§  04.  NATURE  AND  FORMATION. 

afterwards  rented  and  tlie  rents  divided,  does  not  make  them  part- 
ners in  the  property.'  So  a  contract  to  buy  certain  hxnd,  erect  a 
mill  upon  it,  sharing  the  expenses,  and  to  divide  the  profits  arising 
from  selling  or  leasing  it,  does  not  create  a  partnership,  hut  is  a 
mere  tenancy  in  coramoa,  for  there  is  name,  capital,  business  con- 
templated, or  right  to  sell,  or  agreement  for  a  partnership.^  So  if 
two  persons  buy  a  horse  to  resell  at  a  profit,  they  are  tenants  in 
common  and  not  partners,  and  one  has  no  lien  on  the  other's  share 
and  can  sue  him  at  law.^  And  if  tenants  in  common  of  land  as^ree  to 
cut  the  timber  and  share  equally  in  the  expenses  and  proceeds,  it  is 
not  a  partnership  inter  se;*  or  if  the  owner  sells  the  standing 
timber,  paying  in  part  of  the  gross  proceeds.* 

If  the  article  alleged  to  be  owned  in  common  was  procm^ed 
as  subsidiary  to  the  carrying  on  of  a  business  with  it,  there 
is  a  partnership;  as  where  A.  and  B.  agree  to  buy  C.'s  ice 
machine  and  to  make  and  sell  ice  for  ten  years.  This  is  not  a 
tenancy  in  common,  for  the  machine  was  bought  for  the 
business,  and  if  it  were  destroyed  another  could  be  substi- 
tuted.^ 

§  64.  Joint  enterprise  not  for  profit. —  If  a  joint  or  com- 
mon enterprise  is  not  entered  into  for  the  purpose  of  earning 
profits  while  together  there  is  no  partnership. 

Thus   an  arrangement  between  B.  and  C.   for  keeping 

house   together,   to  lessen   expenses,  C.   to   pay  rent  and 

butcher  bills,  and  B.  all  other  bills,  is  no  partnership,  and 

0.  cannot  bind  B.  for  the  rent.'^    An  agreement  to  buy  or 

,  hold  land  in  common  does  not  create  a  partnership;^  nor 

iTreibcr  v.  Lanahan,  23  Md.  116.  cer,  4  Cow.  108,  whei'e  one  attempted 

2  Farraud  v.  Gleason,  56  Vt.  633.  to  sign  for  both  on   the    purchase 

SGoell    -y.    Morse,    126  Mass.    480;  notes;  Brady  v.  Colhoun,  1  Pa.  140; 

Oliver  v.  Gray,  4  Ark.  425.  White  v.    Fitzgerald,     19  Wis.  480, 

4  Millett  V.  Holt,  CO  Me.  169.  holding    that    a    writing   by  F.,  iu 

5  Fail  u.  McRee,  36  Ala.  61.  whose  name  tlie  title  stood,  stating 

6  Leiden  v.  Lawrence,  2  N.  R.  283  the  following  is  the  property  ovs'ned 
(Exch.).  jointly  by  G.  F.  and  J.  W.:  one  hun- 

■- Austin  v.  Thomson,  45  N.  H.  113.     dred   acres  bought  of  O.   and  since 

8Huckabee  v.  Nelson,  54  Ala.  12;     sold  for  $7,500  to  S.,  $2,100  paid,  out 

Gilmore  v.  Black,  11   Me.  485;  Trei-    of  which   W.    received   $1,000;   two 

•ber  V.  Lanahan,  23  Md.  116;  Sikes  v.     «icres  each  had  half  in  full,  sold  to 

Work,  6  Gray,  433;  Ballou  v.  Spcn-     F.  for  $3,600,  no  part  of  which  has 

80 


TESTS  OF  A  PARTNERSHIP.  §  64. 

a  purchase  of  stock. ^  An  agreement  to  buy  and  freight  a 
vessel  in  common  is  not  a  partnership  inter  se}  So  where 
persons  are  jointly  concerned  in  building  a  mill,  they  are 
not  thereby  made  partners,  but  each  is  alone  liable  on  his 
own  conti-acts  for  material.' 

A  joint  interest  in  a  patent  does  not  make  the  parties 
partners.^ 

After  a  partnership  had  ceased  active  operations  two  per- 
sons purchased  the  interest  of  one  partner  in  the  profits; 
these  two,  though  recognized  as  members  of  the  firm,  are 
not  partners,  and,  therefore,  can  sue  each  other  at  law,  for 
there  is  no  participation  in  profit  and  loss.' 

§  65.  A  joint  purchase,  with  the  intention  of  dividing  the 
property  or  making  separate  sales,  each  on  his  own  account, 
does  not  constitute  a  partnership,  for  no  joint  profits  are 
designed  to  be  made.*' 

Thus,  where  A.  and  B.  talked  of  buying  lands,  and  A. 
told  B.  to  go  and  buy  and  he  "  would  go  halves  with  him," 
and  A,  bought  in  his  own  name  and  employed  the  plaintiff 
to  make  certain  needed  improvements,  and  gave  him  a  note 
signed  in  the  name  of  both  A.  and  B.,  there  was  held  to  be 
no  partnership,  and  B.  is  not  liable  on  the  note.''    So  where 

been  given  W.,  etc.,  etc.,  is  not  suffi-  ris    v.   Litchfield,    14    111.    App.    83, 

cient  to  show  a  partnership  in  buy-  whei'e  a  person  agreed   to  pay  half 

iug  and  selling  land,  but  is  rather  a  the  cost  of  fitting  up  a  space  in  the 

declaration    of    trust;    Stannard    v.  steam  vessel  for  carrying  his  goods; 

Smith,  40  Vt.  513,  that  the  mere  fact  be  is  not  liable  on  the  contracts  of 

that  others  were  co-owners  with  de-  the  owners  of  the  vessel  for  work, 

fendant  in  land  does  not  make  them  *  Section  69. 

partners  in  his  scheme  to  develop  a  ^Cowles  v.   Garrett,    30  Ala.  841; 

mine  upon  it,  and  bis  employee  can  Goddard  v.  Pratt,  16  Pick.  412,  425 ; 

sne  him  alone  for  services.  Vere  v.  Asbby,  10  B.  &  C.  288;  Par- 

1  Humphries  u.  McCraw,  5  Ark.  61,  chen  v.  Anderson,  5  Montana,  438, 
where  each  contributed  money  to  457.  Contra  inter  se,  if  already 
buy  a  drove  of  hogs,  and  afterwards  partners  in  the  succeeding  business, 
one  took  out  his  share  by  consent.  McGill  v.  Dowdle,  33  Ark.  311. 

The  rest  can  sue  without  joining  him.  ^  Hoare  v.  Dawes,  1  Doug.  371 ;  Gib- 

2  De  Wolf  ^;.  Howland,  2  Paine,  C.  son  v.  Lupton,  9  Bing.  287;  Coope 
C.  356.  V.  Eyre,  1  PI.  Bl.  37;  Reid  r.  Hollius- 

3  Porter  v.  McClure,  15  Wend.  187;  head,  4  B.  &  C.  867. 

Noyes  v.  Gush  man,  25  Vt.  390;  Mor-        '^Huckabee  v.  Nelson,  54  Ala.  12. 
Vol.  1  —  6  81 


§  6G.  NATURE  AND  FORIklATION. 

five  parties  raised  $90,000  in  fixed  proportions,  and  employed 
one  of  their  number  to  purchase  a  large  quantity  of  cotton 
for  them  and  to  prepare  it  for  market,  they  to  own  it  in 
such  proportions,  but  the  subject  of  selling  was  left  for 
future  arrangement,  they  are  tenants  in  common  and  not 
partners.  The  fact  of  an  original  intention  to  sell  and  di- 
vide profits  is  not  sufficient  without  an  agreement  to  tliat 
effect,  since  either  could  change  his  mind  and  one  could  not 
bind  another.  Hence  if  the  party  who  had  prepared  the 
cotton  for  market  shipped  it  for  sale  and  received  advances 
on  it  from  the  consignee,  which  he  divided  among  his  asso- 
ciates, tliis  is  a  conversion  by  him,  waived  by  them,  and 
they  are  not  liable  to  the  consignee,  the  cotton  not  having 
realized  the  advances.^ 

§  66.  pooling    arrangements. —  An    arrangement  is 

frequently  made  by  which  the  owners  of  separate  businesses, 
which  each  conducts  at  his  own  expense  and  under  his  own 
control,  divide  the  net  earnings  or  the  gross  proceeds  of  cer- 
tain parts  of  the  business  to  which  each  has  contributed. 

Thus  the  owners  of  connecting  lines  of  railroads  or  other 
carriers  associating  on  terms  of  each  giving  through  bills  or 
tickets,  and  dividing  proceeds  in  proportion  to  the  freight 
earned  by  each,  but  without  agreement  to  share  the  pro- 
ceeds of  business  on  all  the  lines,  are  not  partners.  These 
are  mere  running  arrangements.^ 

1  Baldwin  v.  Burrows,  47  N,  Y.  R.  R.  114  Mass.  44;  Algen  u  Boston 
199.  &  Maine  R.  R.  133   id.   423  (6  Am. 

2  Croft  u.  B.  &0.  R.  R.  1  MacArthur  &  Eug.  R.  R.  Cas.  562);  Watkins  v. 
(D.  C),  492;  Ellsworth  -y.  Tar tt,  26  Terre  Haute,  etc.  R.  R.  8  Mo. 
Ala.  733  (62  Am.  Dec.  749);  Hot  App.  569;  Wetmore  v.  Baker,  9 
Springs  R.  R.  v.  Trippe,  42  Ark.  465  Johns.  807;  Pattison  v.  Blauchard,  5 
(48  Am.  Rep.  65) ;  Irvin  v.  Nashville,  N.  Y.  186 ;  Merrick  u  Gordon,  30 
C.  &  St.  L.  Co.  93  111.  103  (34  Am.  id.  93;  Briggs  u  Vanderbilt,  19  Barb. 
Rep.  116);  Atchison.  Topeka  &  Santa  222;  Mohawk  &  Hudson  R.  R.  v. 
Fe  R.  R.  V.  Roach,  35  Kan.  740;  Dar-  Nilcs,  8  Hill  (N.  Y.),  162;  Railroad  v. 
ling  v.  Boston  &  C.  R.  R.  11  Allen,  Sprayberry,  8  Bax.  841;  Nashville 
295;  Gass  v.  N.  Y,  Providence  &  &  Chat.  R.  R.  v.  Sprayberry,  9  Heisk. 
Boston  R.  R.  99  Mass.  220 ;  Pratt  v.  853.  And  see  St.  Louis  Ins.  Co.  v.  S( . 
Ogdensburg&  Lake  Champlain  R.  R.  Louis,  Vandalia,  etc.  R.  R.  104  U.  S. 
103    id.   557,  567 ;  Hartan  v.  Eastern  146  (3  Am.  &  Eng.  R.  R.  Cas.  563).  Br.  I 

82 


TESTS  OF  A  PARTNERSHIP.  §  67. 

If  two  firms  agree  to  divide  equally  profits,  on  compressing  and 
shipping  cotton,  of  the  business  after  excluding  a  certain  amount, 
viz.,  the  first  fifty  thousand  hales,  to  cover  expenses,  each  business, 
however,  to  be  conducted  separately,  and  neither  contributing  to 
the  expenses  or  losses  of  the  other,  they  are  not  partners  inter  se} 

Where  two  firms  agreed  each  to  make  contracts  with  third  per- 
sons in  their  separate  names  for  the  sale  and  delivery  of  flour  and 
other  produce  with  a  view  to  realize  an  anticipated  rise  in  the 
prices,  the  contracts  to  be  for  joint  benefit,  and  profits  to  be  equally 
divided  and  losses  shared  equally,  the  partners  of  both  firms  were 
sued  for  non-performance  of  a  contract  made  by  one  of  the  firms 
in  its  own  name,  the  arrangement  was  held  not  to  be  a  part- 
nership in  Smith  v.  Wright,  5  Sandf.  113,  but  in  4  Abb.  App.  Dec. 
271,  affirming  the  judgment  for  Avant  of  allegation  of  offer  to  per- 
form, the  arrangement  was  said  to  be  a  partnership  as  to  third  per- 
sons.'' 

So  where  R.  owned  one  boat  and  D.  another,  and  they  agreed 
that  at  the  end  of  the  season,  if  the  earnings  of  one  boat,  deduct- 
ing expenses,  exceeded  that  of  the  other,  the  excess  should  be 
divided,  but  neither  had  control  or  voice  in  the  management  of 
the  other's  boat,  the  claim  of  each  is  not  on  the  earnings  in  specie, 
but  a  personal  claim  against  the  owner;  hence  they  are  not  part- 
ners; and  a  passenger  injured  on  one  boat  by  boiler  explosion  can- 
not hold  the  owner  of  the  other  liable  as  a  partner.* 

But  if  in  such  case  the  ownership  in  the  earnings  is  a  vested 
interest  in  them  as  such  and  before  division,  and  not  a  personal 
debt  of  the  owner,  it  is  held  that  the  owners  are  partners,  and  the 
passenger  injured  by  the  boiler  explosion  could  recover  from  both.* 

§67.  common  fund. —  Where  the  earnings  are  put 

into  a  common  fund  it  has  been  held  that  the  associates  are 
partners. 

contracting  in  a  joint  name  repre-  was  held  not  to  be  a  partnership  mier 

senting  them  all  makes  them  jointly  se.     An  agreement  that  they  should 

and  severally  liable  for  a  loss,  Block  work  against  each  other  A-aj  by  day 

V.  Fitchburg  R,  R.  139  Mass.  308.  means   merely  that   if   one   worked 

1  Mayraut  v.  Marston,  G7  Ala.  453;  when  the  other  did  not  he  should  be 
Jordan  v.  Wilkins,  3  Wash.  C.  C.  110.  allowed  for  it.     Hawkins  v.    Mcln- 

2  Where  M.,  having  a  contract  to  tyre,  45  Vt.  496. 

finish  a  church,  agreed  with  H.  to  3  Fay  v.  Davidson,  13  Minn.  523. 
work  it  together,  dividing  receipts,  <  Connolly  v.  Davidson,  15  Minn, 
less  expense  of  material  and  help,  this    519. 

83 


§  G7.  NATURE  AND  FORMATION. 

A  stage  route  consisted  of  sections.  The  occupants  of 
each  section  provided  his  own  coaches  and  horses,  employed 
his  own  drivers  and  paid  the  expenses  of  his  own  section, 
except  tolls.  The  fares,  less  tolls,  were  to  be  divided  in 
proportion  to  the  length  of  each  section.  A  person  was 
injured  by  being  run  into  by  a  coach  on  one  section  and 
sued  all  the  owners  as  partners.  The  fact  that  each  pays  the 
expenses  of  his  own  section  tends  to  show  that  there  was  no 
partnership;  but  as  the  passage  money  was  to  constitute  a 
common  fund,  this  was  held  to  distinguish  the  case  from  one 
where  each  retained  the  passage  money  of  his  own  line  and 
was  merely  agent  of  the  others  in  collecting  their  money  as 
in  the  cases  above  cited,  and  there  was  held  to  be  a  partner- 
ship here  and  a  liability  for  the  injury.^ 

If  such  stage  managers  unite  in  having  a  joint  capital 
and  divide  profits,  they  are  of  course  partners  as  to  third 
persons.^  So,  if  they  hold  themselves  out  as  a  joint  concern, 
third  persons  may  hold  them  as  such.'  And  if  their  drivers 
or  agents  are  jointly  employed,  and  hence  are  the  servants 
of  all,  all  are  jointly  liable  for  their  defaults.* 

1  Champion  v.  Bostwick,  18  Wend.  v.  I.  &  St.  L.  R.  R.  9  Mo.  App.  226; 

175  (31  Am.  Dec.  376).    See  Wayland  Fairchild   v.   Slocum,  19  Wend.   329 

V,   Elkins,  1  Stark.  272;  Holt,  N.  P.  (aff'd,  7  Hill,  292).  One  railway  com- 

227 ;  Fromont  V.  Coupland,  2  Bing.  pany  working  the  lines  of  another 

170,  and  Connolly  v.   Davidson,  su-  company  in  connection  with  its  own, 

2Jra;  The  Stbt.  Swallow,  Olcott,  334;  on  a  division  of  net  receipts,  was  held 

Meaher  v.  Cox,  37  Ala.  201 ;  Bowas  v.  not  to   form  a  partnership  though 

Pioneer  Tow  Line,  2  Sawy.  21.    And  under    a    joint  committee   selected 

this  is  the  explanation  of  such  cases  from  the  directors  of  each.     McCal- 

as  Musier  v.   Trumpbour,  5   Wend,  lum  v.  Buffalo  &  Lake  Huron  R'y 

274.  cited  supro,  §61.  See,  also.  Green  Co.  19  Up.  Can.  C.  P.  117.     On  this 

V.  Beesley,  2  Bing.  N.  C.  108,  where,  principle  of  mixing  in  a  joint  fund, 

liowever,  losses  were  also  to  be  di-  Sims  v.  Willing,  8  S.  &  R.  103,  was 

vided.  decided,  where  A.  chartered  a  vessel 

2Cooley  V.  Broad,  29  La.  Ann.  345  by  B.'s  direction  to  carry  a  cargo  of 

(29  Am.  Rep.  832);  Dow  v.  Say  ward,  flour  belonging  in  part  to  A.,  part  to 

12  N.  H.  271  (aff'd,  14  id.  9).  B.,  and  part  to  C,  the  whole  to  be 

3  Paris,  etc.  Road  Co.  v.  Weeks,  11  sold  to  the  consignee.     The  vessel 

Up.  Can.  Q.  B.   56 ;  Wyman  v.  Chi-  was  captured  by  British  cruisers  and 

cago  &  Alton  R.  R.  4  Mo.  App.  35.  A.,  B.  and  C.  were  held  partners  and 

^Cobb    V.    Abbot,    14    Pick.    289;  individually  liable  for  the  amount  of 

Dwight  V.  Brewster,  1  id.  50 ;  Barrett  a  general  average. 

84 


TESTS  OF  A  PARTNERSHIP.  §  70. 

§  G8.  Cheese  factory. —  The  patrons  of  a  cheese  factory, 
that  is,  persons  who  send  milk  to  the  estabhshment  founded 
by  tlieni,  and  receive  in  return,  at  their  option,  cheese  or 
the  proceeds  of  its  sale,  in  proportion  to  the  delivery  of  milk, 
are  not  partners,  but  either  part  owners  or  creditors,  that  is, 
they  are  either  bailors  or  vendors.^ 

§  69.  Patents. —  A  contract  by  which  an  inventor  agrees 
that  a  person  shall  have  the  exclusive  right  to  make  and 
sell  his  device,  paying  part  of  the  proceeds  or  profits,  is  not 
a  partnership.^  Nor  where  the  owner  of  a  device  agrees 
with  another  to  get  a  patent  in  their  joint  names  and  sell 
the  right  to  use  it,  payable  in  royalties,  and  divide  profits.' 

Co-ownership  in  a  copyright  is  not  a  partnership;  there- 
fore, if  one  uses  the  plates  and  prints  and  sells  copies,  the 
remedies  as  between  partners  are  not  applicable;  ^  nor  a  joint 
interest  in  a  patent.* 

§  70.  Sliip-owiiers. —  On  the  same  principle  that  co-owner- 
ship or  joint  ownership  does  not  constitute  the  owners  part- 
ners, part  owners  of  ships,  steamboats  or  other  craft  are,  in 
absence  of  some  other  element  in  this  relation,  uniformly 
treated  as  not  partners,  ever  since  Doddington  v.  Hallet,  1 
Ves.  Sr.  497,  was  overruled  by  Lord  Eldon  in  Ex  parte 
Young,  2  Ves.  &  Bea.  342,  and  Ex  parte  Harrison,  2 
Rose,  7G.» 

iButterfield  v.  Lathrop,  71  Pa.  St.  488;  Pitts  v.  Hall,  3  id.  201;  Penni- 

225 ;  Sargent  v.  Downey,  45  Wis.  498 ;  man  v.  Munson,  26  Vt.  164 ;  Carter  v. 

Gill  V.  Morrison,  26   Up.  Can.  C.  P.  Bailey,  64  Me.  458. 
124;  Hawley  v.  Keeler,  62  Barb.  231        ^  Ex  parte  Young,  2  V.  &  B.   242; 

(aff'd,  53  N.  Y.  114),  Ex  parte  Harrison,  2  Rose,  76 ;  Helme 

2  Wheeler  u.  Farmer,  38  Cal.  203;  v.  Smith,  7  Bing.  709;  Green  v. 
Vose  V.  Singer,  4  Allen,  226 ;  Math-  Briggs,  6  Hare,  395 ;  Berthold  v. 
ers  V.  Green,  L.  R.  1  Ch.  App.  29;  Goldsmith,  24  How.  536;  The  Will- 
Gillies  V.  Colton,  22  Grant's  Ch.  Up.  iara  Bagaley,  5  Wall.  377;  Macy  v. 
Can.  123.  DeWolf,  3  Woodb.  &   M.  193;  Jack- 

3Hermanos  v.  Duvigneaud,  10  La.  son  v.  Robinson,  3  Mason,  138;  Don- 
Ann.  114.  aid  V.   Hewitt,    33  Ala.  534;  Bacoa 

4  Carter  v.  Bailey,  64  Me.  458.     As  v.  Cannon,  2  Houst.   47 ;  Loubat  v. 

to  trade-mark,  Dent  v.  Turpin,  2  J.  &  Nourse,  5  Fla.  350 ;  Allen  v.  Hawley, 

H.  139.  6  id.  142  (63  Am.  Dec.  198) ;  Patterson 

sParkhurst  v.  Kinsman,  1  Blatchf,  v.  Chalmers,  7  B.  Mon.  595;  Owens^ 

85 


§71. 


NATURE  AND  FORMATION. 


A  ship  or  steamboat  ma}^,  hovv^ever,  be  the  subject  of 
partnership  as  well  as  any  other  property.^  And  if  she  is 
owned  by  a  partnership  as  part  of  their  assets,  she  is  held 
the  same  as  other  property  and  hence  may  be  sold  by  one 
partner.^  And  in  other  respects  the  rules  governing  ordi- 
nary partnerships  apply. ^  And  part  owners  of  a  ship  may 
be  partners  in  the  earnings  or  freight.^ 

§  71.  Joint  cargo. —  Persons  not  connected  in  trade  who 
contribute  specified  portions  of  a  cargo,  or  ship-owners  who 
unite  in  taking  an  interest  in  the  proceeds  of  a  cargo  sent 
out  by  them  to  be  sold,  without  agreement  as  to  profit  and 
loss,  are  not  partners,  the  only  joint  act  being  that  of  sell- 


mg.* 

V.  Davis,  15  La.  Ann.  22;  Theriot  v. 
Michel,  28  La.  Ann.  107;  Harding  ^;. 
Foxcroft,  6  Me.  7G;  Knowlton  v. 
Reed,  38  id.  246;  Little  v.  Merrill,  62 
id.  328;  Merrill  v.  Bartlett,  6  Pick. 
46.  And  see  Thorndike  v.  DeWolf, 
6  id.  120;  Moore  u  Curry,  106  Mass. 
409 ;  Cinnamond  v.  Greenlee,  10  Mo. 
578;  Ward  v.  Bodeman,  1  Mo.  App. 
272;  Muniford  v.  Nicoll,  20  Johns. 
611  (reversing  4  Johns.  Ch.  522): 
Stedman  v.  Feidler,  20  N.  Y.  437; 
Williams  v.  Lawrence,  47  N.  Y.  462 ; 
Scottin  V.  Stanley,  1  Dall.  129;  Coe 
V.  Cook,  3  Whart.  569;  Hopkins  v. 
Forsyth,  14  Pa.  St.  34;  Coursin's  Ap- 
peal, 79  Pa.  St.  220 ;  Baker  v.  Casey, 

19  Grant's  Ch.  (Up.  Can.)  537.  Contra, 
Story  on  Partnership,  §  344;  Hinton 
V.  Law,  10  Mo.  701.  See  Seabrook  v. 
Rose,  2  Hill  (S.  Ca.).  Ch.  553. 

1  Campbell  v.  Muliett,  2  Swanst. 
551 ;  Nugent  v.  Locke,  4  Cal.  318; 
Loubat  V.  Nourse,  5  Fla.  350 ;  Allen 
V.  Havvley,  6  id.  142  (63  Am.  Dec. 
198) ;  Hewitt  v.  Sturdevant,  4  B.  Men. 
453,  459;  Phillips  v.  Purington,  15 
Me.  425;  Lamb  v.  Durant,  12  Mass. 
54  (7  Am.  Dec.  31) ;  Miimford  v.  Nicoll, 

20  Johns.  611,  628  (rev.  S.  C.  4  Johns. 


Ch.  52);  Williams  v.  Lawrence,  47 
N.  Y.  462;  Lape  v.  Parviu,  2  Disney, 
560 ;  and  cases  in  the  next  notes. 

2  The  William  Bagaley.  5  Wall. 
377,  406 ;  Lamb  v.  Durant,  12  Mass. 
54  (7  Am.  Dec.  31).  And  see  Hewitt  v. 
Sturdevant,  4  B.  Mon.  453;  Ex  parte 
Howden,  2  M.  D.  &  D.  574. 

3  Loubat  V.  Nourse,  5  Fla.  350;  Allen 
V.  Hawley,  6  id.  142  (63  Am.  Dec.  198) ; 
Williams  v.  Lawrence,  47  N.  Y.  462; 
Wright  V.  Hunter,  1  East,  20. 

••Phillips  V.  Penny  wit,  1  Ark.  59; 
Starbucks.  Shaw,  10  Gray,  492;  Rus- 
sell V.  Minnesota  Outfit,  1  Minn.  162; 
Young  u.  Brick,  3  N.  J.  L.,  241,  490, 
664 ;  Reeves  v.  Goff,  3  id.  194,  454,  C09 ; 
Mumford  v.  Nicoll,  20  Johns.  611  (re- 
versing 4  Johns.  Ch.  522);  Merritt 
u  Walsh,  82  N.  Y.  685,  6^9;  Will- 
iams V.  Lawrence,  47  id.  462 ;  Coe  v. 
Cook,  3  Whart.  569 ;  Baker  v.  Casey, 
19  Grant's  Ch.  (Up.  Can.)  537. 

5  Saville  v.  Robertson,  4  T.  R.  720 ; 
Hoare  v.-  Dawes,  1  Dougl.  371 ;  Coope 
V.  Eyre,  1  H.  Bl.  37;  Harding  v. 
Foxcroft,  6  Me.  76;  Holmes  ij.  United 
F.  Ins.  Co.  2  Johns.  Cas.  329 ;  Post  v. 
Kimberly,  9  Johns.  470;  French  v. 
Price,   24  Pick.    13,   19;  Jackson  v. 


86 


TESTS  OF  A  PARTNERSHIP.  §  71. 

This  principle  was  held  to  apply  where  A.  sold  to  B.  two 
thousand  boxes  of  candles  on  joint  account,  B.  to  receive  a 
commission  on  sales,  and  for  one-half  the  sales  B.  is  to  pass 
over  the  purchase  notes  to  A.  The  sale  by  A.  to  B.  make 
them  tenants  in  common  of  the  candles,  and  the  agreement 
to  consign  them  to  B.  for  sale  on  joint  account,  though 
simultaneous  with  the  sale,  and  perhaps  constituting  one 
motive  for  it,  is  distinct  from  it.^ 

Robinson,  3  Mason,  138 ;  De  Wolf  v.        ^  Hawea   v,   Tillinghast,    1    Gray, 
Rowland,  2  Paine,  C.  C.  356;  Coe  v.     289. 
Cook,  3  Whart.  569. 

87 


CHAPTER  III. 


JOINT  STOCK  COMPANIES,  CLUBS  AND  GRANGES. 

§  72.  Joint  stock  company. —  There  is  nothing  illegal  in  a 
partnership  with  transferable  shares,  and  that  is  all  that  a 
joint  stock  company  is.  There  is  no  intermediate  associa- 
tion or  form  of  organization  between  a  corporation  and  a 
partnership  known  to  the  common  law,  and,  unless  other- 
wise provided  by  statute,  as  is  the  case  in  England  and  New 
York,  a  joint  stock  company  is  treated  and  has  the  attri- 
butes of  a  common  partnership.^  Yet  the  fact  of  transfer- 
able shares  makes  such  an  association  different,  not  merely 
in  magnitude  but  in  kind,  from  ordinary  partnerships,  be- 
cause not  based  upon  mutual  trust  and  confidence  in  the 

1  That  it  is  a  partnership,  Perring    55  Am.  Dec.  53;Butterfield  v.  Beards- 


V.  Hone,  4  Bing.  28;  Fox  v.  Clifton, 
6  id.  776;  Clagett  v.  Kilbourne,  1 
Black,  346;  Montgomery  v.  Elliott,  6 
Ala.  701 ;  Gi'ady  v.  Robinson,  28  Ala. 
289;  Smith  v.  Fagan,  17  Cal.  178; 
McConnell  v.  Denver,  35  id.  365; 
Pettis  V.  Atkins,  60  111.  454;  Pipe  v. 
Bateman,  1  Iowa,  369;  Greenup  v. 
Barbee,  1  Bibb,  320;  Frost  u.  Walker, 
60  Me.  468 ;  Alvord  v.  Smith,  5  Pick. 
232;  Haskell  v.  Adams,  7  id.  59; 
Kingman  v.  Spurr,  id.  235 ;  Tyrrell 
V.  Washburn,  0  Allen,  466;  Taft  v. 
Ward,  106  Mass.  518;  Bod  well  v. 
Eastman,  id.  525 ;  Whitman  v.  Porter, 
107  id.  522;  Gott  v.  Dinsmore,  111  id. 
45;  Taft  V.  Warde,  111  id.  518; 
^Machinists'  Nat'l  Bank  v.  Dean,  124 
id.  81 ;  Boston  &  Albany  R.  R.  v. 
Pearson,  128  id.  445;  Phillips  v. 
Blatchford,  137  id.  510;  Ricker  v. 
American  Loan  &  Trust  Co.  140  id. 
346;    Burgan  v.   Lyell,  2  Mich.  102; 


ley,  28  Mich.  412;  Whipple  v.  Parker, 
29  id.  369;  Willson  v.  Owen,  30  id. 
474;  Boisgerard  v.  Wall,  1  Sm.  & 
Mar.  Ch.  404 ;  Atkins  v.  Hunt,  14  N. 
H.  205;  Niven  v.  Spickerman,  12 
Johns.  401;  Skinner  v.  Dayton,  19  id. 
513  (10  Am.  Dec.  286) :  rev.  5  Johns. 
Ch.  351 ;  Moore  v.  Brink,  4  Hun,  402; 
6  N.  Y.  Supreme  Ct.  22;  Riauhard  v. 
Hovey,  13  Oh.  300;  Cochran  v.  Perry, 
8  W.  &  S,  262;  Pledge  &  Horn's  Ap- 
peal, 63  Pa.  St.  273;  Thomson's  Es- 
tate, 12  Phila.  36;  Shamburg  v. 
Abbott,  112  Pa.  St.  6;  Cutler  v. 
Thomas,  25  Vt.  73;  Chapman  v,  Dev- 
ereux,  32  Vt.  616  (9  Am.  Law  Reg. 
O.  S.  419);  Walker  v.  Wait,  50  Vt. 
668 ;  McNeish  v.  Hulless  Oat  Co.  57 
Vt.  316;  Hardy  v.  Norfolk  Mfg.  Co. 
80  Va.  404;  Kimmins  v.  Wilson,  8 
W.  Va.  584;  First  Nat'l  Bank  v.  Goff, 
31  Wis.  77;  Werner  v,  Leisen,  31 
Wis.  169. 


88 


JOINT  STOCK  COMPANIES.  §  73. 

ekill,  knowledge  and  integrity  of  every  other  partner.^ 
Hence,  a  sale  of  his  shares  by  a  member,  the  shares  being 
transferable,  is  not  a  dissolution.'^  Death  of  a  member  is 
not  a  dissolution,  if  such  was  the  intent;  and  the  character 
of  the  association,  in  tliat  the  shares  are  transferable  and  it 
is  governed  by  officers,  and  is  in  the  form  of  a  corporation, 
is  evidence  of  such  intent.^  It  is  obvious  that  much  less 
evidence  is  required  to  show  such  intent  than  in  the  case  of 
the  purchase  of  an  interest  in  an  ordinary  partnership.*  And 
the  fact  of  such  purpose  is  a  question  of  fact  for  the  jury.* 

If  the  concern  is  composed  of  numerous  members  and  is 
governed  by  managers,  there  is  no  implied  power  in  the 
other  members  to  act.''  And  if  the  managers  are  to  act  as 
a  board,  the  individual  assent  of  each  is,  as  in  the  case  of 
directors  of  a  corporation,  not  equivalent  to  an  act  of  the 
board.  ^ 

§  73.  liability,  and  liow  enforced. —  Although  by  the 

law  of  the  state  in  which  the  association  was  organized, 
actions  against  it  must  be  in  the  name  of  the  president  or 
treasurer,  and  that  no  action  shall  be  brought  against  the 
members  until  execution  against  the  company  is  returned 
unsatisfied,  it  is  nevertheless  a  mere  partnership.^  These 
provisions  relate  to  the  remedy  and  are  local,  and  outside 
such  state  the  personal  liability  of  the  members  may  bo 
enforced  in  the  first  instance.^ 

iPer  James,    L.  J.,    Baird's  Case,        7  skinner  v.  Dayton,  5  Johns.  Ch. 

L.  R.  5  Ch.  App.  725,  733.  351. 

2Cothrau  v.  Perry,  8  W.  &  S.  262.        STaft  v.  Warde,  106  Mass.  518;  Bos- 

3  Baird's  Case,   L.   R.   5  Ch.  App.  ton  &  Albany  R.  R.  v.  Peaison,  128 

725;  Machinists'  Nat'l  B'k  v.  Dean,  Mass.    445;   and   cases   cited,    all   of 

124  Mass.  81;  Tenney  v.  New  Engl,  them  being  upon  the  New  England 

Protec.    Un.   37  Vt.    64;    Walker  v.  Express  Co.,    organized   under    the 

Wait,  50  id.  668 ;  McNeish  v.  HuUess  laws  of  New  York.     Contra,  Fargo 

Oat  Co.  57  id.  316.  v.   Louisv.    New  Alb.   &  C.  R'y,  10 

i  Machinists'  Nat'l  B'k  v.  Dean,  124  Biss.  273. 
Mass.  81,  84.  STaft  v.    Warde,    106    Mass.    518; 

5 McNeish   v.  Hulless   Oat  Co.    57  Gott  u.  Dinamore,  111  id.  45;  Boston 

Vt.  316.  &  Albany  R.  R.  v.  Pearson.  128  id. 

6  Greenwood's  Case,  3  DeG.  M.  &  445.     See   Cutler  v.  Thomas,  25  Vt. 

G.  459,  477.  73. 

89 


§  74.  NxlTURE  AND  FORMATION. 

The  members  are  individually  liable  in  solldo  for  the 
debts  as  in  an  ordinary  partnership;^  although  the  articles 
have  not  been  complied  with  as  between  the  partners,  in 
that  but  a  small  part  of  the  contemplated  capital  had  been 
subscribed.^ 

Purchasers  of  shares  become  partners  and  are  liable  as 
such;^  and  liable  for  notes  issued  after  they  become  mem- 
bers for  prior  debts.*  In  contributing  inter  se,  those  who 
are  insolvent  or  removed  from  the  jurisdiction  are  not 
counted.* 

§  7 1.  what  constitutes  memlbership. —  A  subscriber 

to  whom  shares  have  been  delivered  is  a  partner,  though  he 
never  signed  the  deed  or  articles.^  And  even  though  certifi- 
cates of  stock  have  not  been  delivered  to  him,  and  he  has 
signed  only  the  subscription  paper  and  paid  the  executive 
committee.®  And  though  a  share  was  assigned  to  one  not 
present  at  the  meeting,  but  who  agreed  to  take  it,  although 
he  has  not  paid  or  performed  other  conditions  subsequent.^ 
But  a  mere  signing  the  subscription  paper  and  paying  is 
not  sufficient  until  the  company  is  organized,  for  otherwise 
the  first  signer  would  be  at  once  a  member.'  Signature  of 
the  name  to  the  subscription  and  payment  of  assessments  is 
sufficient  proof  of  membership,  without  showing  by  whom 
the  names  were  signed.^''    And  proof  that  the  party  was  a 

iCarlewu,  Drury,  1  Ves.  &B.  157;        mcConnell    v.    Denver,    35    Cal. 

Keasley  v.  Codd,  2  0.   &  P.  403,  n. ;  365. 

R.  V.  Dodd,  9  East,  516;  Robinson's  5  Whitman  v.  Porter,  107  Mass. 
Case,  6  DeG.  M.  &  G.  572;  Hodgson  522.  As  to  the  personal  liability  of 
V.  Baldwin,  65  111,  532;  Greenup  v.  purchasers  of  shares  for  antecedent 
Barbee,  1  Bibb,  320;  Frost  V.Walker,  liabilities  for  which  their  assignors 
60  Me.  468;  Whitman  v.  Portei',  107  were  chargeable,  see  §  187, 
Mass.  522,  524;  Gott  v.  Dinsmore,  ^Perring  t\  Hone,  4  Bing.  28;  But- 
Ill  Mass.  45;  Skinner  v.  Dayton,  19  terfield  v.  Bt-ardsley,  28  Mich,  412, 
Johns.  537 ;  Hess  v,  Werts,  4  S.  &  R.  7  Boston  &  Albany  R.  R.  v.  Pear- 
361;  Cutler  v.  Thomas,  25  Vt.  73;  son,  128  Mass.  445;  Frost  v.  Walker, 
First  Nai'l  Bank  v.  Goff,  31  Wis.  77.  60  Me.  408. 

2  Bodwell  V.   Eastman,    106  Mass.        s  Grady  v.  Robinson,  28  Ala.  289, 
S25.  9  Hedge  &  Horn's  Appeal,  63  Pa. 

3  Machinists'  Nat'l  B'k  v.  Dean,  124  St.  273;  Fox  v.  Clifton,  6   Bing.  77G. 
Mass.  81.  10  Frost  v.  Walker,  60  Me.  468. 

90 


JOINT  STOCK  COMPANIES.  §  76 

member  of  the  executive  committee  is  sufficient  without 
proving  ownership  of  shares.^ 

If  the  shares  are  not  transferable  without  the  consent  of 
the  directors,  the  assignee  is  not  a  partner  until  such  consent 
is  had,  and  cannot  maintain  suit  for  an  account.^  But  a 
mere  affirmative  provision  that  shares  are  assignable  by  cer- 
tificate, which  when  filed  enable  the  assignee  to  be  a  partner, 
is  for  the  convenience  of  the  company,  and  does  not  pre- 
vent a  sale  without  that  ceremony.* 

§  75.  Clubs. —  A  club  or  unincorporated  association  not 
formed  for  purposes  of  gain  or  pecuniary  profit  is  not  a 
partnership.*  The  fact  that  they  have  common  property  or 
a  joint  fund  does  not  make  them  partners.  As  where  a  club 
for  moral  and  social  objects  sublets  surplus  room  and  thus 
accumulates  a  fund.^  Or  a  musical  club  owns  the  instru- 
ments, and  requires  resigning  members  to  leave  them  as 
common  property.^  This  category  includes  unincorporated 
associations  for  various  purposes,  as  social  or  pleasure  clubs, 
political  clubs,  associations  for  mutual  benefit,  church  as- 
sociations, library  associations,  secret  societies,  lodges,  and 
tlie  like. 

As  these  associations  are  not  formed  for  profit  and  loss, 
if  a  contract  is  made  in  their  society  name,  the  associates 
are  not  bound  by  it,  unless  it  was  authorized  by  them;  but 
all  the  officers  or  members  who  joined  in  making  or  author- 
izing the  contract  are  represented  by  the  joint  name,  and 
they  are  liable  upon  it,  on  the  ground  of  principal  and  agent 
and  not  of  partnership. 

iBoclwell  V.   Eastman,    106   Mass.  H.  113,  and  the  cases  cited  through 

525,  52C.  And  see  Taf t  v.  Warde,  HI  this  section.     The  contrary  expres- 

Mass.  518;  Pettis  u.  Atkins,  60111.  454;  sion  in  Babb  v.    Reed,  5   Rawle,  151 

Doubleday  v.  Muskett,  7  Bing.  110.  (28  Am.  Dec.  650),  has  been  limited 

2 Kingman  v.   Spurr,  7  Pick.  235;  in  Ash  v.  Guie,  97  Pa.    St.  493.     For 

Perrino-  v.  Hone,  4  Bing.  28.  promoters   of  corporations,  see  §89, 

SAlvord  V.  Smith.  5  Pick.  232.  ^Lafond  v.  Deems,  81  N,  Y.  507. 

<St.  James   Club,  2  DeG.  M.  &  G.  6Danbury  Cornet   Baud  v.  Bean, 

383 ;  Andrews  v.  Alexander,  L.  R.  8  54  N.  H.  524. 
Eq.  176;  Austin  v.  Thomson,  45  N. 

91 


§  75.  NATURE  AND  FORMATION. 

Thus,  in  Richmond  v.  Judy,  6  Mo.  App.  465,  it  was  hekl  that 
where  a  committee  to  conduct  a  political  campaign  is  sued  for  ad- 
vertising bills,  the  members  are  liable  only  for  the  acts  which  they 
have  authorized.  In  Ash  v.  Guie,  97  Pa.  St.  493  (39  Am.  Rep.  818; 
10  Am.  Law  Rec.  278),  a  committee  of  a  masonic  lodge,  appointed 
to  erect  a  building  and  borrow  for  the  purpose,  who  issue  certifi- 
cates of  indebtedness,  bind  only  the  members  who  authorized  or 
ratified  the  act. 

So  in  Burt  v.  Lathrop,  52  Mich.  106,  the  members  of  an  associa- 
tion to  resist  the  claims  of  a  patentee,  the  conditions  of  member- 
ship being  an  initiation  fee  and^;ro  7'ata  assessments,  are  not  liable 
personally  for  a  contract  of  their  officers  in  employing  an  attorney. 

So  in  Flemyng  v.  Hector,  2  M.  &  W.  172,  where  a  member  of  the 
Westminster  Reform  Club  was  sued  for  the  value  of  labor  and 
material  supplied  to  the  club,  and  the  same  ruling  made.' 

But  those  who  made  or  authorized  the  contract  are  liable.' 

Not  being  a  partnership,  a  member  who  has  paid  more 
than  his  share  towards  the  authorized  common  object  can- 
not have  a  bill  in  equity  for  an  accounting.^  And  the  com- 
mittee can  sue  the  members  at  law  for  their  subscriptions, 
which  could  not  be  done  if  there  was  a  partnership."*  And 
a  member  who  abstracts  the  funds  may  be  prosecuted  for 
embezzlement,  which  could  not  be  done  if  he  were  a  partner." 

1  Devoss  V.  Gra3%  23  Oh.  St.  189.         house.     Contra,  Cheeny  v.  Clark,   3 

2  Ferris  u.  Thaw,  5  Mo.    App.  279;     Vt.  431. 

Eichbaum   v.   Irons,  6  W.    &  S.  GT;  <  Hall  u.  Thayer,  12  Met.  130.     See 

Blakely  v.    Bennecke,   59    Mo.    193;  Caklicott  u.  Griffiths,  8  Exch.  898. 

Lewis  V.  Tilton,  (54  Iowa,  220;  53  Am.  5Qneen  v.  Robson,  IG  Q.  B.  D.  137. 

Rep.    436;  Heath  v.    Goslin,    80   Mo.  The  ekler  of  a  church  cannot  sue  in 

310 ;  50  Am.  Rep.  505 ;  Ray  v.  Powers,  liis  own  name  to  secure  a  title  to  the 

134  Mass.  22;  Cross  v.  Williams,  7  11.  lot,  but  the  members  must  join,  or 

&  N.  675  ;  Cockerell  v.  Aticompto,  2  C.  part  may  sue  on  behalf  of  all  if  very 

B.  N.  S.  440;  Burls  u.  Smith,  7  Bing.  numerous.  McConnell  v.  Gardner, 
705;  Luckombe  v.  Ashton,  2  F.  &  F.  Morris  (Iowa),  273;  Lloyd  v.  Loaring, 
705 ;  Delauney  y.  Stickland,  2  Stark.  6  Ves.  773,  a  masonic  lodge.  And  a 
41G;  Braithwaite  v.  Skofield,  9B.  &  suit  against  them  nmst  be  against  the 

C.  401.  memliers  and  not  against  the  society 

3  Woodward  v.  Cowing,  41  Me.  9,  on  its  agent's  contracts,  Wilkins  v. 
an   association  to   build    a  meeting  "Wardens,  etc.  of  St.  Maik's  Church, 

53  Ga.  351. 
93 


JOINT  STOCK  COMPANIES.  §  76. 

But  the  rights  of  members  in  the  property  and  contracts 
belonging  to  the  club  are  similar  to  those  of  a  partnership. 
Thus,  part  of  the  members  cannot  sue  the  rest  at  law  on 
their  contract  with  the  association;^  and  it  has  been  held 
that  a  court  of  equity,  when  applied  to  wind  up  a  club,  would 
deal  with  it  as  a  partnership,  and  entertain  the  bill,- 

§  7  6.  Grang-es  and  co-operative  stores. —  There  is  a  form 
of  association  intermediate  between  a  club,  which  is  not 
formed  for  profit,  and  a  joint  stock  company  which  is, 
namely,  a  co-operative  store  or  grange,  where  the  members 
own  the  store  and  buy  from  it  at  cost  prices  with  a  percent- 
age for  estimated  expenses  added,  there  being  no  design 
to  make  profit,  since  the  sales  are  to  themselves  alone. 
But  where  the  objects  contemplate  selling  to  the  outside 
world  these  bodies  are  deemed  partnerships; '^  the  advantage 
being  to  obtain  for  members  alone  the  benefit  of  wholesale 
purchases  of  miscellaneous  commodities  —  the  business  be- 
ing generally  managed  by  an  agent  controlled  by  a  board 
of  directors  ignorant  of  trade,  under  constitutions  which 
have  frequently  been  found  full  and  minute  as  to  all  the 
rules  fit  for  a  debating  society  and  wholly  silent  on  the 
points  most  vital  to  pecuniary  welfare.* 

1  McMahon    v.   Rauhr,    47    N.  Y.  Atkins  v.  Hunt,  14  N.  H.  205 ;   Far- 

67.  num  v.  Patch,  60  id.  294;  Edgerly  v. 

-'Beaumont  v.  Meredith,  3  Ves.  &  Gardner,  9  Neb.  130;  Smith  v.  Hol- 

B.  180;  Gorman  v.  Russell,  14   Cal.  lister,  33  Vt.  695;  Stimson  v.  Lewis, 

531 ;  18  id.  683.  Contra,  Buxke  v.  Ro-  36    Vt.   91;    Tenney  v.   New   Engl. 

per,  79  Ala.  138.  Protec.  Union,  37  Vt.  64;  Henry  v. 

3 Hodgson  V.  Baldwin,  65  111.  533;  Jackson,  37  Vt.  431. 

Manning  v.  Gasharie,   27  Ind.  399;  *  Henry    v.   Jackson,    37  Vt.   431, 

Beaman   v.    Whitney,   20  Me.   413;  435. 

93 


CHAPTER  IV. 

INCHOATE  PARTNERSHIPS. 

§  78.  Executory  contract  not  a  partnership. — An  execu- 
tory contract  to  form  a  partnership  is  not  a  partnership, 
though  it  may  ripen  into  one,  by  being  what  is  commonly 
called  launched,  that  is,  by  carrying  the  agreement  into 
effect,  and  engaging  in  the  joint  undertaking;  but  the  effect 
and  the  agreement  itself  are  two  different  things.  Hence,  an 
agreement  to  become  partners  at  a  certain  time  does  not 
alone  show  partnership,  even  when  that  time  has  arrived, 
so  as  to  enable  one  party  to  compel  the  other  to  account  to 
him  for  profits  earned,  after  a  refusal  to  admit  the  com- 
plainant; nor  does  it  enable  the  one  party  to  render  the 
other  liable  on  contracts  entered  into  by  him  before  the 
consummation  of  the  partnership. 

Hence,  an  agreement  by  A,  witli  C,  tliat  on  the  death  of  A.'s 
partner,  B.,  C.  should  become  a  partner,  is  not  sufficient  evidence 
of  partnership  after  such  death.'  An  agreement  that  whichever 
party  procured  a  contract  to  build  a  railroad,  all  would  be  partners 
in  it,  and  one  got  it  and  refused  to  take  in  the  rest,  is  not  a  part- 
nership, but  a  mere  executory  agreement.^  Under  an  agreement  to 
form  a  partnership  at  a  future  date,  where  one  of  the  parties  pro- 
ceeded to  conduct  the  proposed  enterprise  for  his  own  special  beneiit, 
to  the  exclusion  of  the  other,  repudiation  of  the  agreement  gives 
the  other  no  claim  for  an  accounting  of  profits,  but  only  an  action 
at  law  for  breach  of  contract.'    Even  an  oral  acceptance  of  an  offer 

>  Brink  v.  New  Amsterdam  F.  Ins.  418.     And  in  Reboul  v.  Chalker,  27 

Co.  5  Robt.  (N.  Y.)  104.  Conn.  114,  where  A.  and  B.  bought 

2  "Wilson  V.  Campbell,  10  111.  383;  a  stock  of  goods,  and  made  a  con- 
Vance  V.  Blair,  18  Oh.  532;  51  Am,  tract  which  recited  an  equal  owner- 
Dec.  467.  ship  in  the  goods,  and  their  intention 

3  Powell  V.  Maguire,  43  Cal.  11.  to  form  a  partnership  to  continue 
See,  also,  Jletzner  v.  Baldwin,  11  for  three  years  from  May  1,  and  pro- 
Minn.    150;  Doyle  v.    Bailey,  75  111.  vided    for  the    business,  but  A.  re- 

94 


INCHOATE  PARTNERSHIPS. 


§  78. 


of  partnersliip,  without  change  in  the  business  or  money  paid  or 
property  turned  over,  is  not  conclusive  of  the  formation  of  a  firm.' 

Where  a  person  contracts  for  a  lease  of  land  and  a  growing  crop, 
for  which  he  pays  a  certain  sum,  getting  part  of  it  from  a  third 
person,  under  an  agreement  that  the  latter  shall  become  his  part- 
ner, if  the  lessee  acquires  possession,  this  is  no  partnership,  pos- 
session never  having  been  obtained,  and  the  lessee  can  sue  alone 
for  breach  of  contract  by  the  lessor. ** 

So,  where  C.  and  W.,  in  186S,  agreed  to  form  a  partnership,  to 
farm  the  property  of  W.  for  the  ensuing  year,  and  W.  died  before 
the  beginning  of  the  year,  C.  is  not  entitled  to  the  possession  of  the 
farm  as  surviving  partner.*  This,  doubtless,  would  have  been  the 
ruling,  even  had  the  contract  stipulated  for  a  partnership  in  pre- 
smti,  if  nothing  had  been  done  under  it,  for  a  surviving  partner 
takes  the  partnership  assets  to  wind  up  the  business  and  not  to 
carry  it  on. 

So,  an  agreement  made  in  August,  1873,  between  D.  and  H.,  that 


fused  to  perform  the  contract  and 
proceeded  to  purchase  more  goods  in 
his  own  name  and  for  his  individual 
benefit,  in  an  action  to  hold  B.  lia- 
ble as  a  partner  for  the  price  of  the 
latter  goods,  it  was  held  that  there 
had  not  been  a  partnership  and  a 
dissolution ;  but  the  partnership  term 
was  not  to  begin  until  May  1.  and 
the  remedy  inter  se  for  refusal  to 
perform  would  be  an  action  for 
breach  of  contract,  and  that  B.  could 
not  be  held.  The  fact  that  they  had 
purchased  goods  does  not  advance 
the  beginning  of  the  term,  for  they 
could  buy  books,  rent  a  store,  etc., 
without  beginning  the  partnership. 
And  in  Metcalf  v.  Redmon,  43  111. 
264,  R.  wrote  to  M.,  offering  to  go 
into  partnership  in  the  purchase  of 
twenty  horses,  to  be  shipped  to  and 
sold  by  R..  and  M.  accepted  the  offer, 
bought  twenty-se'fen  horses  and 
opened  books  in  the  name  of  M.  and 
R. ;  but  sold  the  horses  elsewhere, 
without  R.'s  knowledge,  and  there 


being  a  loss  sued  R.  for  an  account- 
ing. As  the  field  of  profit  was  R.'s 
state,  M.  had  not  complied  with  the 
terms,  the  partnership  was  not 
launched,  and  the  bill,  therefore,  was 
not  maintainable. 

1  Hutchins  v.  Buckner,  3  Mo.  App. 
594.  And  see  Gray  v.  Gibson,  6  Mich. 
300. 

2Snodgrass  v.  Reynolds,  79  Ala. 
453.  Where  M.  paid  to  the  firm  of 
Schacher  Bros.  £3,000,  to  be  invested 
in  a  steamer,  to  be  used  in  trade ;  M. 
to  have  five  per  cent,  on  his  money, 
and  a  one-eighth  share  in  earnings 
of  the  steamer,  and  M.  also  agreed 
within  a  year  to  pay  £4,000  more, 
and  thereupon  was  to  have  a  three- 
sixteentlis  interest  in  all  Schacher 
Bros,  business,  including  the  steamer, 
this  agreement  does  not  constitute 
M.  their  partner  in  the  steamer,  the 
£4,000  never  having  been  fully  paid. 
Meyer  v.  Schacher,  38  L.  T.  N.  S. 
37. 

3  Cline  V,  Wilson,  26  Ark.  154. 


95 


§  80.  NATURE  AND  FORMATION. 

D.  would  cut  timber  from  II.'s  land  in  partnership  witli  liim,  was 
said  not  to  make  them  partners  before  the  job  was  begun,  so  as  to 
render  H.  liable  for  goods  sold  to  D.  in  October,  1873.'  But  pur- 
chases before  the  partnership  is  formed  may  be  ratified  by  the 
others  by  disposing  of  the  goods  for  their  own  purposes  after  learn- 
ing that  they  were  purchased  on  the  credit  of  the  supposed  firm." 

§  7y.  intention  to  form  a  i)Jirtnersliii). —  A  mere  in- 
tention to  form  a  partnership  does  not  constitute  one  until 
an  actual  agreement  is  made.^  As  where  several  persons 
contributed  a  fund  and  employed  one  of  their  number  to  buy 
a  quantity  of  cotton,  leaving  the  subject  of  sale  for  future 
arrangement,  they  are  merely  tenants  in  common,  and  the 
fact  that  they  originally  intended  to  sell  and  divide  profits 
does  not  make  them  partners.''  So,  the  fact  that  several 
persons  associated  themselves  to  run  a  line  of  stage-coaches 
and  had  a  general  meeting,  and  debts  were  contracted  oa 
account  of  the  company,  does  not  prove  a  partnership  inter 
fip;  hence  one  who  paid  the  debts  can  sue  the  rest  at  law  for 
contribution."^ 

§  80.  Pnrcliases  in  contemplation  of  a  partnership. —  So, 

contracts  made  and  liabilities  incurred  by  individuals  upon 
their  separate  credit  and  on  their  own  account,  under  an 

iHall  V.  Edson,  40  Mich.  651.    An  Thebens,  19  La.  Ann.  51G.    See  Lowe 

agreement  by  a  firm  of  sf)ice  dealers  v.  Dixou,  16  Q.  B.  D.  405,  where  all 

with  a  person  to  admit  him  to  a  share  were  held  liable, 

in  an  investment,  if  his  secret  infor-  spike    v.    Douglass,    3S   Ark.    59; 

mation  of  changes  in  the  tariff  ob-  Fleshmanu.  Collier,  47  Ga.  253;  West- 

tained  from  a  congressional  commit-  cott  v.  Price,  Wriglit  (O.),  320.     An 

tee  prove  true,  is  not  a  partnersliip.  assumption  of  specified  portions  of 

Strong  V.  Place,  51  N.  Y.  627;  4  Robt.  the  debt  by  the  members  is  not  an 

385.     For  other  examples  of  agree-  assumption     by     tlie     partnership, 

ments  between  parties  to  form  part-  Mousseau  v.  Thebens,    19  La.   Ann. 

nerships  to  begin  at  a  future  date,  516. 

before  which  time  one  of  them  makes  3  Lycoming  Ins.   Co.  r.  Barringer, 

purchases  in  the  name  of  all  without  73  111.  230;  Bourne  v.  Freeth,  9  B.  «fc 

the   knowledge  of    the    others,    for  C.  632;  Reynell  v.  Lewis,  15  M.  &  W. 

which  they  were  held  not  liable  be-  517. 

cause  the  purchasing  party  had  not  <  Baldwin  v.  Burrows,  47  N,  Y.  199, 

yet    authority    to    bind    them,    see  207. 

Davis  V.  Evans,  39  Vt.  182 ;  Gaus   v.  »  Chandler  v.    Brainard,    14  Pick. 

Hobbs,    18  Kan.    500;    Mousseau  v.  285. 

96 


INCHOATE  PARTNERSHIPS.  §  80. 

agreement  by  whicli  money  or  property  so  obtained  shall, 
when  procured,  be  contributed  to  a  partnership  to  be  formed 
between  them,  followed  by  the  formation  of  the  partnership 
and  putting  the  money  or  goods  into  it,  does  not  make  the 
firm  liable  on  these  contracts,  for  the  power  of  each  to  bind 
the  others  does  not  begin  until  the  firm  is  created;  the 
agreement  being  that  each  shall  do  certain  things  at  his  own 
expense  and  then  become  partners.' 

In  Saville  v.  Robertson,  4  T.  R.  720,  several  persons  agreed  to 
share  the  profit  and  loss  of  an  adventure,  but  no  one  was  to  be  re- 
sponsible for  aDytliing  ordered  except  by  himself.  The  rest  are  not 
responsible  for  the  goods  ordered  by  one,  for  the  partnership  does 
not  begin  until  the  stocks  are  united. 

In  McGar  v.  Drake  (Tenn.  1877),  5  Reporter,  347,  an  agreement 
between  Parker  and  Drake  that  Parker  should  buy  McGar's  hogs 
and  Drake  should  buy  those  of  another  person,  and  put  them  to- 
gether in  partnership  when  purchased,  does  not  make  Drake  liable 
on  the  purchase  to  McG-ar.  So,  also,  Webb  v.  Liggett,  6  Mo.  App. 
845,  where  L.  and  D.  were  to  furnish' animals,  tools  and  money  to 
cultivate  hemp,  and  G.  was  to  furnish  the  land,  superintend  the 
crop  as  agent  of  L.  and  D.,  ship  it  to  L.  and  D.'s  commission  mer- 
chant, who  was  to  pay  him  one-tbird  the  profits.  L.  and  D.  are  not 
liable  for  the  rent  of  land  leased  by  G.  in  his  own  name  for  the  pur- 
pose. 

And  in  Valentine  v.  Hickle,  39  Ohio  St.  19,  each  of  three  persons 
was  to  buy  cattle  on  his  own  account,  and  upon  each  lot  of  cattle 
reaching  the  place  of  shipment  the  others  could  take  an  interest  in  it 
or  not,  as  they  saw  fit;  if  they  did,  the  cattle  were  to  become  part- 
nership property  and  to  be  shipped  and  sold  on  joint  account;  here 
neither  became  liable  on  the  other's  purchases,  although  the  cattle  < 
were  accepted. 

In  Coope  V.  Eyre,  1  H.  Bl.  37,  A.,  B.,  C.  and  D.  agree  that  A. 
shall  buy  and  they  shall  have  aliquot  parts  of  the  purchase.  This  is 

iHeapu.  Dobson,  15  0.  B.  N.  S.  460;  Baxter  v.   Plunkett,   4  Houst.   450; 

Smith  V.    Craven.  1  Or.    &  J.    500;  Brooke  v.  Evans,  5  Watts,  196;  Webb 

Coope  V.  Eyre,  1  H.  Bl.  37;  SaA'ille  v.  v.  Liggett,  (5  Mo.  App.  345 ;  Valentine 

Robertson.   4   T.  R.    720;   Young  v.  v.  Hickle,  39  Ohio  St.  19;  Heckert  u. 

Hunter,  4  Taunt.  582;  Huttonv.  Bui-  Fegely,    6  W.  &  S.    139;   McGar  v, 

lock,    L.   R.   8  Q.  B.  331;  9  id.   572;  Drake  (Tenn.   1877),  5  Reporter,  347. 
Vol.  1  —  7                               97 


§  81.  NATURE  AND  FORMATION. 

not  a  partnership,  for  tlicre  is  no  agreement  to  join  in  a  sale;  it  is 
a  sub-sale  only. 

In  Hutton  v.  Bullock,  L.  R.  8  Q.  B.  331,  affirmed  in  9  id.  572, 
H.,  F.  &  Co.,  a  London  firm,  were  to  "purchase"  goods  and  send 
them  out  on  "joint  account"  of  themselves  and  H.,'B.  &  Co.,  a 
firm  at  Rangoon,  each  firm  to  charge  a  commission,  one  for  buying 
and  the  other  for  selling.  Plaintiff,  who  sold  the  goods  to  H.,  F. 
&  Co.,  had  no  knowledge  of  the  interest  of  H.,  B.  &  Co.,  and  it 
was  held  could  not  charge  them  as  undisclosed  principals,  the 
agreement  not  being  to  purchase  on  joint  account,  but  to  ship  on 
joint  account. 

In  Gouthwaite  v.  Duckworth,  2  East,  421,  B.  &  P.,  partners, 
being  indebted  to  D.,  all  three  agreed  to  join  in  buying  and  selling 
goods,  B.  &  P.  to  buy,  pay  for  and  sell  them  and  remit  the  proceeds 
to  D.,  who  should  deduct  the  amount  of  his  debt  and  share  profit 
with  B.  &  P.  All  three  were  held  liable  to  pay  for  goods  bought 
by  B.,  on  the  ground  that  the  purchase  was  for  the  adventure  and 
the  adventure  began  with  the  purchase.'  And  in  Saufley  v.  How- 
ard, 7  Dana,  367,  H.  and  A.  agreed  to  share  profits  of  sales  of  goods 
to  be  bought  by  A.  on  his  own  credit,  and  A.  bought,  paying  by  a 
note  in  the  firm  name,  and  H.  received  the  goods  in  boxes  marked 
in  the  firm  name,  and  both  were  held  liable;  and  the  provision  that 
A.  was  to  buy  on  his  own  credit  was  regarded  as  a  secret  restriction 
on  liability. 

§  81.  WliJit  are  not  in  futuro. —  If,  however,  the  contract 
of  partnership  either  expresses  an  existing  association,  as 
distinguished  from  an  executory  agreement,  or  contemplates 
continuous  proceedings  to  be  begun  immediately  for  the 
joint  benefit,  the  intention  is  to  create  a  partnership  in  pre- 
senti  and  not  one  in  futuro. 

Thus,  a  recital  that  the  parties  "  have  entered  "  into  a  partnership, 
and  fixing  no  time  for  its  commencement,  has  been  i«»)garded  as  in- 
tending an  existing  partnership.  The  facts  in  the  case,  however, 
showed  that  the  parties  actually  acted  as  partners." 

In  Aspinwall  v.  Williams,  1  Oh.  84,  by  the  articles  of  partner- 
ship to  operate  a  distillery,  each  partner  was  assigned  the  perform- 
ance of  certain  duties,  at  joint  cost,  in  order  to  put  the  partnership 

1  This  case  is  very  close.  See,  also,  2iQgraham  u.  Foster,  31  Ala,  123, 
Everitt  V.  Chapman,  6  Conn.  347. 

98 


INCHOATE  PARTNERSHIPS.  §  81. 

into  operation.  Thus,  one  was  to  build  the  distillery  at  joint  cost, 
and  the  rest  to  furnish  stills,  worms  and  goods;  there  was  no 
agreement  as  to  the  cost  of  any  part,  but  that  each  was  to  be  owner 
of  the  whole  equally.  They  were  held  to  be  partners  at  once  and 
not  from  the  commencement  of  business,  and  all  liable  on  a  note 
made  by  one  in  the  firm  name.' 

In  Lucas  v.  Cole,  57  Mo.  143,  where  both  parties  who  had  agreed 
to  become  partners  were  held  liable  for  the  purchase  of  goods  by 
one  on  behalf  of  both  for  the  purpose  of  conducting  the  partner- 
ship, the  court,  without  saying  as  in  the  above  case  that  the  part- 
nership had  already  begun,  placed  their  ruling  on  the  ground  that 
business  preparatory  to  the  business  of  the  partnership  binds  both 
the  partners. 

So  in  Atkins  v.  Hunt,  14  N.  H.  205,  subscribing  at  a  meeting 
articles  of  association  for  trading  called  The  Farmers'  and  Mechan- 
ics' Store,  which  articles  prescribed  that  the  business  should  be 
done  by  a  majority  of  those  present,  constituted  a  present  partner- 
ship or  actual  existing  reality,  and  not  a  proposition  to  form  one. 
The  statute,  however,  provided  that  each  subscriber  should  be  a 
partner." 

In  Adams  Bank  v.  Rice,  2  Allen,  480,  A.  said  to  B.  that  he 
needed  a  partner  so  that  in  case  of  his  death  there  should  be  some 
one  to  close  up  the  business,  and  proposed  to  take  B.  in,  paying 
him  $1,500  the  first  year  and  a  share  of  profits  thereafter,  and  an 
agreement  was  executed  accordingly,  stating  that  the  parties  had 
this  day  formed  a  partnership  as  A.  &  Co.,  and  sales  were  made  and 
drafts  drawn  in  the  firm  name,  and  each  acted  as  a  full  partner;  A. 
having  died  within  the  year,  B.  was  held  to  be  his  surviving  part- 
ner, although  receiving  a  fixed  sum. 

In  Beauregard  v.  Case,  91  U.  S.  134,  B.  was  to  lease  a  railroad, 
and  he  and  M.  &  G.  were  to  put  in  not  to  exceed  $150,000  each, 
and  run  it  until  the  profits  repaid  M.  &  G.  their  contributions,  after 
which  the  profits  would  be  divided.  It  was  held  that  the  post- 
ponement of  division  of  profits  did  not  prevent  its  being  a  present 
partnership,  and  liable  for  B.'s  overdrafts  on  a  bank  to  raise 
money  to  operate  the  railroad. 

In  Drennen  v.  London  Assur.  Co.  113  U.  S.  51,  A.  was  to  be  ad- 

1  See,  also,  Noyes  v.   Cushman,  25    Mich.  167,  analyzed  under  the  next 
Vt.    390,    wiiich   is  very   similar  to    section, 
this;   aud    Kerrick    v.    Stevens,    55 

99 


§  82.  NATURE  AND  FORMATION. 

mitted  into  a  business  on  the  terms  that  the  company  would  be 
incorporated  and  he  should  pay  into  the  firm  $5,000  for  its  use, 
which  was  to  be  put  into  the  corporation,  but  no  change  in  the 
name  or  character  of  the  firm  should  be  made  until  the  corpora- 
tion was  formed.  This  was  held  to  mean  that  A.  was  not  to  act 
for  or  have  an  interest  in  the  property  until  the  corporation  was 
formed. 

In  Haskins  v.  Burr,  106  Mass.  48,  defendant,  desiring  to  secure 
plaintiff's  services  in  his  factory  business,  and  plaintiff,  desiring  to 
secure  an  interest  therein,  made  an  agreement  reciting  these  facts, 
and  agreeing  that  plaintiff  should  be  employed  at  a  certain  salary 
and  should  give  his  notes  for  a  certain  sum;  that  if  certain  mort- 
gages on  the  property  were  paid  out  of  the  profits,  and  if  the  notes 
were  paid,  the  defendant  would  convey  one-half  of  the  business  to 
the  plaintiff.  Before  the  notes  or  mortgages  were  paid,  the  de- 
fendant sold  the  property  and  thus  incapacitated  himself  from  ful- 
filling the  contract;  plaintiff  thereupon  claimed  an  accounting  as 
partner  from  the  beginning.  It  was  held  that  his  remedy  was  at 
law,  for  breach  of  contract,  for  the  agreement  was  wholly  execu- 
tory and  he  had  no  joint  property  in  the  capital  or  lien  on  the 
profits. 

§  82.  same. —  And  the  fact   that   the   present   tense  or 

future  tense  is  used  in  the  articles  will  not  be  allowed  to  control 
a  manifest  purpose. 

Thus,  in  Kerrick  v.  Stevens^  55  Mich.  167,  the  defendant  was  by 
the  articles  to  furnish  money  and  the  others  to  do  work  in  putting 
up  a  factory  in  which  to  manufacture  a  patented  device,  con- 
tributed by  one  as  his  capital,  and  when  the  factory  was  completed 
all  were  to  be  equal  partners;  and  in  an  action  before  its  completion, 
for  the  price  of  machinery  furnished  for  the  factory,  where  some  of 
the  defendants  denied  the  partnership,  it  was  held  that  to  determine 
when  the  partnership  began  "  the  purpose  must  be  derived  from 
the  nature  of  the  agreement  and  not  from  the  technical  meaning 
of  words  as  present  or  future,  standing  alone."  It  is  quite  proper 
to  use  future  words  as  to  the  interest  to  be  held  in  future  property. 
It  would  be  an  "  anomaly  to  have  capital  paid  in  and  expended 
without  any  partnership  existing." 

And  in  Goddard  v.  Pratt,  16  Pick.  412,  a  member  of  P.  &  Co. 
having  died,  several  persons  agreed  to  buy  out  his  interest  in  P.  & 
Co.  and  to  be  interested  in  the  profits,  the  surviving  members  of  P. 

100 


INCHOATE  PARTNERSHIPS.  g  83. 

&  Co.  to  get  the  concern  incorporated  and  then  a  copartnership 
to  be  formed;  but  it  was  held  that  the  parties  became  partners, 
at  least  from  the  time  of  payment,  and  that  the  agreement  was  not 
executory. 

In  Vassar  v.  Camp,  14  Barb,  341,'  three  partners  agreed  to  convey 
to  four  other  persons  a  half  interest  in  the  firm,  and  give  them 
half  the  net  profits,  such  profits  to  be  applied  to  paying  for  the 
latter's  shares  of  the  business,  and  at  the  end  of  five  years  to  con- 
vey the  half  interest,  one-eighth  to  each,  profit  and  loss  to  be 
shared.  Here  was  a  right  to  share  profits  and  to  use  the  capital, 
and  an  inchoate  interest  in  the  capital,  and  it  was  held  to  be  a  pres- 
ent partnership. 

§  83.  Conditions  precedent. —  If  the  performance  of  certain 
things  are  conditions  precedent  to  the  existence  of  the  part- 
nership, the  parties  are  not  partners  until  these  are  per- 
formed.^ 

In  James  v.  Stratton,  32  111.  202,  W.  and  S.  were  to  buy  cattle 
on  joint  account,  and  W.  failed  to  furnish  his  share  of  funds,  and 
S.  borrowed  the  money,  paid  for  all  the  cattle  and  shipped  them  in 
his  own  name,  and  a  creditor  of  W.  levied  on  his  supposed  interest 
in  them;  but  it  was  held  there  never  had  been  a  partnership,  and 
W.  had  no  interest.' 

In  Napoleon  v.  State,  3  Tex.  App.  522,  N.  and  R.  agreed  to  be- 
come partners,  with  equal  capital,  in  selling  confectionery  at  a 
picnic,  N.  to  buy  the  stock  and  manage  the  business;   R.  paid 
his  share  of  the  capital  to  N.,  who  abandoned  the  enterprise  and 
^^  kept  the  money,  and  it  was  held  that  no  partnership  was  consum- 
,  mated,  and,  therefore,  N.  was  liable  for  embezzlement. 

In  Hobart  v.  Ballard,  31  Iowa,  521,  plaintiff  agreed  to  buy  an  in- 
terest in  a  business  for  Si, 500,  of  which  he  paid  $1,295;  but  the 
terms  were  that  he  was  not  to  share  profits  or  be  an  acting  partner 
until  fall  payment;  and  defendant  having  refused  to  let  him  be- 
come a  partner,  he  applied  for  a  receiver,  and  it  was  held  that  these 
facts  were  not  sufficient  to  show  a  present  partnership. 

In  Jolmston  v.  Eichelberger,  13  Fla.  230,  where  A.  sold  to  B. 
one-half  his  stock  of  goods,  B.  agreeing  to  pay  half  the  cost  and 

1  Affirmed  on  other  points  in  11  N.  128,  142;  Metcalf  v.  Redmon,  43  111. 
Y.  441.  204,  noticed  fully  (§  78,  note). 

2  Dickinsoa  v.  Valpy,  10  B.  &  C.        *  See,  also,  Stevenson  v,  Mathers, 

67  111.  123. 
101 


§  84.  NATURE  AND  FORMATION. 

charges  to  be  incurred,  not  yet  ascertained,  in  getting  the  goods, 
and  they  were  then  to  sell  the  goods  as  partners,  it  was  held  that 
the  property  must  pass  before  there  is  a  partnership,  and  that  the 
vendor  could  insist  on  payment  first,  and  that  slight  circumstances, 
attributable  to  courtesy  and  confidence,  would  not  be  deemed  a 
waiver  of  this  condition. 

In  Fox  V.  Clifton,  6  Bing.  776,  an  advertisement  inviting  sub- 
scriptions to  shares  in  a  company  with  a  capital  of  £600,000,  or 
twelve  thousand  shares,  on  terms  to  be  settled  in  a  deed,  was  re- 
garded only  as  an  offer  to  form  a  partnership,  and  defendants 
subscribing  and  paying  the  first  instalment  as  an  assent  to  the 
terms.  But  as  only  seven  thousand  five  hundred  shares  in  all  were 
taken,  and  of  those  only  two  thousand  three  hundred  paid  the  first 
instalment,  the  defendants,  who  had  never  attended  any  of  the 
meetings  or  in  any  way  interfered  as  partners,  were  held  not  bound 
by  the  act  of  the  directors  in  purchasing  goods  and  employing 
labor,  for  they  had  assented  to  be  partners  in  a  concern  raising 
£600,000  capital  and  governed  by  a  deed  never  executed.  The 
directors,  therefore,  acted  before  they  had  any  authority  to  bind 
the  defendants.     See,  also.  Hedge  &  Horn's  Appeal,  63  Pa.  St.  273. 

§  84.  Same. —  But  it  seems  that  terms  will  not  be  treated  as 
conditions  precedent  unless  so  expressed,  or  in  their  nature  such  aa 
to  raise  a  presumption  that  they  are  so. 

Thus,  in  Durant  v.  Rhener,  26  Minn.  362,  a  contract  between  the 
firm  of  D.  W.  &  Co.,  the  plaintiffs,  and  R,,  the  defendant,  that  R. 
should  put  up  ice  for  the  southern  market  and  plaintiffs  should 
furnish  the  money,  and  plaintiffs  were,  on  getting  south,  to  look 
over  the  market  and  determine  whether  it  was  safe  to  put  up  ice, 
and  they  wrote  to  defendant  to  put  up  ice  but  never  furnished  any 
money,  though  ready  and  willing  to  do  so  had  they  been  called 
upon;  and  defendant  sold  the  ice  at  a  profit  of  $2,500,  in  an  ac- 
tion for  an  accounting  of  profits  it  was  called  a  partnership  in  pre- 
sently and  not  one  to  begin  when  plaintiffs  sent  notice  to  the 
defendant  to  put  up  the  ice,  but,  being  contracted  on  Sunday,  was 
held  void. 

So  where  B.  and  H.  wrote  to  B,  and  S.  proposing  that  the  latter 
should  consider  a  shipment  of  three  hundred  bales  of  cotton  \s  on 
joint  account,  and  B.  and  S.  wrote,  consenting,  and  requested  B. 
and  II.  to  designate  and  mark  the  cotton  on  joint  account  and  ad- 
vise them  when  it  was  shipped,  this  constitutes  a  contract,  and  the 

102 


INCHOATE  TARTNERSHIPS.  g  SO. 

request  to  designate  and  mark. is  not  a  condition  imposed  in  the 
acceptance,  but  a  direction.^ 

In  Guice  v.  Thornton,  76  Ala.  466,  on  an  agreement  to  form  a 
partnership,  each  to  contribute  $2,000,  a  charge  to  the  jury  that 
no  partnership  arises  until  the  shares  are  brought  together  into  a 
common  venture,  and  until  then  one  party  cannot  bind  the  rest 
by  a  note  in  the  firm  name,  was  held  erroneous  on  the  ground 
that  a  partnership  is  deemed  to  he  in pref^entiiYova.  the  time  of 
signing  the  agreement,  unless  the  terms  of  the  instrument  rebut 
this  presumption. 

The  conditions  may  be  subsequent  ones  by  the  terms  of  the 
agreement,  as  in  Grady  v.  Robinson,  28  Ala.  289,  where  a  partner- 
ship to  speculate  in  Indian  lands  was  agreed  on  at  a  meeting  of 
the  company,  the  number  of  shares  were  fixed,  the  interest  of  each 
member  was  allotted,  and  a  specified  sum  required  to  be  paid  on 
each  share,  and  each  member  was  to  relinquish  to  the  company  all 
interest  then  held  by  him  in  the  lauds,  and,  on  failure  to  comply, 
his  interest  was  to  be  forfeited.  A  p3rson  who  had  agreed  to  take 
the  shares  assigned  to  him  was  held  to  be  a  partner  as  to  third  per- 
sons who  had  purchased  tracts  from  the  company  and  now  seek  to 
divest  the  title,  although  he  had  not  paid  his  instalment  or  relin- 
quished the  interest  held  by  him  in  the  land. 

§  85.  Oral  conditions. —  Whether  oral  evidence  is  admissible 
to  show  that  a  contract  of  present  partnership  was  not  to  go  into 
operation  except  upon  a  contingency  depends  upon  the  rules  of 
evidence.  That  an  oral  condition  cannot  be  engrafted  upon  them 
has  been  held,''and  such  is  doubtless  the  law.  On  the  other  hand, 
parol  evidence  has  been  admitted  to  show  that  the  articles  were  to 
be  held  by  one  of  the  signers  until  certain  debts  were  paid.^  The 
cases  are  not  inconsistent,  for  delivery  being  part  of  the  execution 
of  an  instrument,  the  latter  evidence  went  to  show  incomplete  ex- 
ecution and  not  to  contradict. 

§  86.  Waiving  conditions  by  launching. —  Inasmuch  as 
acting  together  as  partners  may  constitute  a  partnership, 
though  no  written  articles  by  agreement  be  entered  into,  so 
actually  beginning  the  joint  business  or  launching  it  to- 

iBrisban  v.  Boyd,  4  Paige,  17,  20.        2Dix  v.  Otis,  5  Pick.  38;  Williama 
See    Saufley   v.   Howard,    7    Dana,     v.  Jones,  5  B.  &  C.  108. 
367.  s  Beall  v.  Poole,  27  Md.  645. 

103 


g  86,  NATURE  AND  FORMATION. 

gether,  although  something  remains  to  bo  done  or  condi- 
tions to  be  performed  by  one  or  all,  will  constitute  an 
immediate  partnership  inter  se  and  as  to  third  persons.  This 
is,  as  it  were,  converting  a  condition  precedent  into  a  condi- 
tion subsequent.  Thus,  if  partners  agree  to  act  together  as 
such  without  waiting  for  the  signature  of  an  absent  one  to 
the  articles,  although  they  would  not  form  a  partnership 
without  him,  they  become  partners  inter  se  thereby.^  So  if 
a  partner  has  not  done  all  that  he  agreed  to  do,  as  where  he 
fails  to  contribute  all  he  had  agreed  to  put  in,  but  they  go 
on,  it  becomes  a  partnership  in  presenti.^ 

In  Cook  V.  Carpenter,  31  Vt.  121,  B.,  of  A.  &  B.,  partners  in  cat- 
tle dealing,  proposed  to  take  C.  into  the  firm,  to  which  A.  agreed, 
provided  B.  and  C.  would  furnish  all  the  money  necessary,  and  A. 
agreeing  to  do  the  selling  and  guaranty  sales.  C.  accepted  this 
proposition,  but  B.  did  not  tell  him  that  he  and  B.  were  to  furnish 
all  the  funds.  Stock  was  bought  and  all  three  signed  the  note, 
and  A.  having  had  to  pay  it  sued  B.  andC.  claiming  that  there  was 
no  partnership  for  want  of  a  meeting  of  minds,  and  that  he  was 
surety  only.  But  it  was  held  that  as  both  A.  and  C.  agreed  to  be 
partners,  and  both  understood  that  they  were  acting  as  such,  and 
actually  proceeded  in  the  business,  neither  ought  to  claim  the  con- 
tract as  he  and  not  the  other  understood  it,  and  in  this  dilemma 
the  rule  must  be  applied  that  persons  who  agree  to  become  part- 
ners and  actually  act,  are  so,  although  they  did  not  understand 
the  conditions  of  partnership  alike. 

In  Gullich  v.  Alford,  61  Miss.  221,  where  Gr.,  who  owned  a  mill 
and  owed  A.,  agreed  with  A.  to  convey  half  the  mill  to  A.,  the 
debt  being  part  payment,  A.  to  repair  the  mill  and  G.  and  A.  to 
form  a  partnership,  and  pursuant  to  this  they  ran  the  mill  together 
for  a  time,  dividing  profits  each  day  until  A.,  being  unable  to  pro- 

1  Ontario  Salt  Co.   v.    Merchants'        2  stein  v.  Robertson,  30  Ala.  286, 

Salt  Co.  18  Grant's  Ch.  (Up.  Can.)  293;  ILutman  t;.  Woehr,  18  N.  J.  Eq. 

551;  McStea  v.  Matthews,  50  N.  Y.  383;  Pitlmer  u.  Tyler,  15  Minn.  106; 

166,  and  on  the  same   instrument,  Coggsvvell  y.  Wilson,  11  Oregon,  371; 

Hubbard  v.  Matthews,  54  N.  Y.  43 ;  Boyd  v.   Mynutt,  4  Ala.  79 ;  Camp- 

13  Am.  Rep.  562.    And  see  Wood  v.  bell  v.  Whitley,  39  id.  172;  Jackson 

CuUen,    13    Minn.    394,    where  one  v.  Sedgwick,  1  Swanst.  460,  See  Per- 

partner  had  notsigned  the  articles  but  kins  u  Perkins,  3  Gratt.  3C4. 
•was  held  liable  on  a  partnership  note. 

104 


INCHOATE  PARTNERSHIPS.  §  88. 

cure  a  conveyance  from  G.,  abandoned  the  partnership  and  sued  G. 
as  for  services,  it  was  held  that,  having  acted  as  partners  and 
enjoyed  the  fruits  of  the  enterprise  in  part  as  such,  a  conveyance 
could  not  now  be  claimed  to  be  a  condition  precedent  to  full  exe- 
cution, and  A.'s  remedy  was  in  equity  for  an  accounting. 

In  Phillips  V.  Nash,  47  Ga.  218,  a  person  purchased  an  interest  in 
an  existing  firm,  the  agreement  reciting  a  present  and  not  a  future 
conveyance  of  the  interest,  although  it  was  also  agreed  that  an  ac- 
count of  stock  should  be  taken,  and  he  should  pay  more  if  it 
exceeded  an  estimated  amount.  They  were  held  to  be  partners  from 
the  time  of  conveyance,  the  law  of  sales  governing  the  transaction. 

In  Thurston  v.  Perkins,  7  Mo.  29,  partnership  articles  were  exe- 
cuted and  the  partners  began  to  act  as  such,  but  gave  it  up  after 
six  weeks,  finding  that  they  could  not  buy  goods  on  credit.  The 
attempt  to  purchase  was  held  an  act  of  partnership,  for  the  world 
cannot  look  to  see  if  they  actually  traded,  and  notice  of  dissolution 
was  held  necessary  to  relieve  one  from  liability  on  subsequent 
contracts. 

§87.  payment  for  future  partnersbip. —  Bat   mere 

payment  of  money  in  anticipation  of  a  future  partnership 
does  not  make  the  parties  partners.^ 

So  negotiations  to  admit  E.  as  a  partner  were  had,  he  to  pay 
£2,000  to  the  partners  as  premium  and  "  &  Co."  to  be  added  to  the 
old  firm's  name,  and  he  paid  the  £2,000  and  "  &  Co."  was  added  to 
the  name,  but  E.  did  nothing  else  and  refused  to  be  a  partner.  This 
is  not  sufficient  to  make  him  one,  and  he  can  prove  in  bankruptcy 
as  creditor  for  his  advance.'^ 

If  all  the  acts  proved  are  equally  consistent  with  an  intention  to 
become  a  partner  in  a  business  to  be  afterwards  carried  on  as  with 
that  of  an  existing  partnership,  it  is  difficult  to  say  that  there  is 
evidence  of  authority  in  the  rest  to  bind  him.* 

§  88.  Options  to  become  partner. —  Articles  of  partner- 
ship or  agreements  are  frequently  made  stipulating  that  an 
employee  or  others  of  the  firm  may,  after  a  certain  time, 
become  a  partner,  or  may  have  an  option  to  be  a  partner 

iHubbpll  V.  "Woolf,  15  Ind.  204;  3per  Parke,  J.,  in  Dickinson  v. 
Hoile  V.  York,  27  Wis.  209.  Valpy,  10  B.  &  C.  128,  141 ;  and  tliia 

2  Ex  parte  Turquand,  2  M.  D.  &  D,  was  quoted  and  held  to  be  the  law  in 
339.  Atkins  v.  Hunt,  14  N.  H.  205. 

105 


§  88.  NATURE  AND  FOR^IATION. 

from  a  prior  period;  or  that  one  who  loans  money  for  the 
business  may  on  or  before  a  certain  date  elect  to  be  consid- 
ered a  partner  from  the  beginning,  letting  the  loan  stand  as 
capital.  In  all  such  cases  there  is  no  partnership  either 
inter  se  or  as  to  third  persons  until  the  election  has  been 
made.^  But  the  agreement  must  be  bona  fide,  and  not  for 
purposes  of  concealment.^ 

Ill  Sailors  v.  Nixon-Jones  Printing  Co.  20  111.  App.  509,  three 
persons,  each  owning  a  third  interest  in  a  business,  made  a  con- 
tract called  "  partnership,"  by  which  two  of  them  were  to  carr}' 
on  the  business  at  their  own  profit  and  loss  and  the  other  was 
bound  to  become  a  partner  in  two  years.  This  was  held  not  to  be 
a  partnership,  because  there  was  no  community  of  profit  and  loss, 
and  the  third  owner  is  not  liable  for  debts  incurred  during  the  two 
years.* 

Where  A,  advances  money  to  B.  to  be  used  in  his  business  and 
takes  notes  for  it,  both  agreeing  that  he  might  become  an  equal 
partner  and  the  money  become  his  capital  if  he  desired,  and  B. 
carried  on  the  business,  taking  more  than  half  the  .profits  and 
crediting  A.  with  interest,  and  A.  expostulated,  saying  he  was  a 
partner  and  should  liave  profits  and  not  interest,  but  B.  continued 
to  credit  interest,  upon  A.'s  bringing  suit  upon  the  notes,  the 
court  can  hold  that  there  is  no  partnership  and  the  action  lies.'' 

If,  however,  among  actual  partners  there  is  a  stipulation  that 
one  might  at  the  end  of  a  year  or  other  period  elect  to  be  an  em- 
ployee from  the  beginning,  at  a  salaiy  in  lieu  of  profits,  the  exer- 
cise of  such  election  is  not  a  dissolution  and  a  new"  partnership, 
but  inter  se  the  other  partners  are  regarded  as  a  firm  fiom  the  be- 
ginning." 

1  Ex  parte  Davis,  4  DeG.  J.  &  Sm.  2  See  Courteuay  v.  Wagstaff,  16  C. 

523;  Gabriell  v.    Evill,   9   M.   &  W.  B.  N.  S.  110. 

297,  and  Car.  &  Marsh.  353;  Price  v.  3  A  partnership  may  be  contracted 

Groom,  2  Ex.  542 ;  Howell  v.  Brodie,  to  take  effect  in  the  future  or  on 

6  Bing.  N.  C.  44;  Adams  v.  Pugh,  7  conditions.     Avery  v.   Lauve,   1  La, 

Cal.     150;    Williams    v.    Soutter,    7  Ann.  457.     And  this  is  an  enforcible 

Iowa,     435;    Moore    v.    Walton,     9  right.      Handlin    v.    Davis,    81   Ky 

Bankr.   Reg.  403;  Irwin  v.  Bidwell,  34. 

72  Pa.  St.  244;  Darling  v.  Bellhouse,  ^  Morrill  v.  Spurr,  143  Mass.  257. 

19  Up.  Can.  Q.  B.  268;  Hill  v.  Bell-  6  Bidwell  v.  Madison,  10  Minn.  13 
house,  10  Up.  Can.  C.  P.  123. 

106 


INCHOATE  PARTNERSHIPS.  §  85). 

§  89.  Promoters  of  corporations. —  Associates  joining  to 
form  a  future  company,  or  the  promoters  of  a  corporation, 
are  not  partners  while  engaged  in  taking  the  necessary  pi-e- 
Hminary  steps;  provided,  of  course,  they  do  not  begin  the 
business,  or  contract  or  otherwise  act  as  partners.  They 
never  have  agreed  to  be  partners  at  all;'  and  if  one  lends 
money  or  performs  services^on  a  contract  with  the  rest,  he 
can  recover  from  them  at  law.^  And  if  the  board  of  whicli 
he  is  a  member  orders  work  done,  he  may  be  liable  on  the 
principle  stated  in  §75;^  but  unless  the  contract  was  by 
himself  or  an  authorized  agent,  he  is  not  liable  merely  from 
the  fact  of  membership  in  the  committee.'' 

1  See,    for    example,     Reynell    v.  been  ruled  in  Holmes  r.  Higgins,  1 

Lewis,  15  M.   &  W.  517;  1   Sim.  N.  B.  &  C.  74,  but  this  is  clearly  not  so. 

S.  178-  Hamilton  t'.  Smith,  5  Jur.  N.  SDoubleday  v.   Muskett,  7   Bing. 

S.  32;  West  Point  Foundry  Ass'u  v.  110. 

Brown,  3  Edw.  Ch.   284;  Sylvester  4  Bailey  v.  Macaulay,   19  L.  J.  Q. 

V.  McCuaig,  28   Up.  Cau.  C.  P.  448.  B.  73;  Wood  v.   Duke  of  Argyll,  6 

2 Hamilton  v.  Smith,  5  Jur.  N.  S.  Man.  «&  Gr.  926.     As  to  the  liability 

32;   Sylvester  v.   McCuaig,    28  Up.  of  stockholders  in  an  abortive  cor- 

Can.  C.   P.  443.     The  contrary  had  poration,  see  §§  4-6. 

107 


CHAPTER  V. 

BY   HOLDING  OUT  OR  ESTOPPEL, 

§  90.  In  general. —  A  person  not  actually  a  partner  may- 
render  himself  liable  as  one  by  inducing  people  to  act  upon 
the  faith  of  representations  by  him  that  he  is  a  partner. 
Not  being  a  partner,  he  is  not  liable  generally,  but  only  to 
those  whom  he  has  misled,  the  principle  applicable  being 
that  of  ordinary  estoppel.  These  representations  may  be  to 
a  particular  person,  whose  condact  alone  is  influenced  by 
them;  or  they  may  be  assertions  intended  to  be  repeated 
and  acted  upon  by  third  persons,  as  where  defendant  in- 
forms A.  that  he  is  a  partner,  and  A.  informs  plaintiff,  who 
supplies  goods  in  reliance  on  the  statement,^  as  where  he 
gives  the  information  to  a  mercantile  agency;  or  the  repre- 
sentation may  be  still  more  general,  as  where  he  lends  his 
name  generally  by  permitting  it  to  appear  in  the  firm  style, 
in  which  case  he  represents  to  the  whole  world  that  he  is  a 
partner.^ 

The  representations  need  not  be  by  himself,  nor  be  abso- 
lute assertions.  If  he  knowingly  permits  others  to  hold 
him  out  as  a  partner,  or  to  convey  the  impression  that  he  is 
one,^  or  where  appearances  are  held  out  justifying  the  be- 
lief, or  there  is  a  failure  to  contradict  an  impression  or  un- 
deceive a  party,  under  circumstances  calling  upon  the 
defendant  not  to  remain  silent. 

But  while  it  is  very  difficult  to  distinguish  between  evi- 
dence that  goes  to  show  a  person  to  be  in  fact  a  partner  and 
that  which  proves  a  holding  out,  yet  liability  on  the  latter 
ground  proceeds  solely  on  the  ground  of  estoppel,  and  the 

1  Per  Williams,  J.,  in   Martyn  v.        *Qui  facit  per   alium,  must  face 
Gray,  14  C.  B.  N.  S.  824,  841.  it  liimself.     Punch. 

2EYBE.  C.  J.,  Wuugh  V.  Carver,  2 
H.  Bl.  235. 

108 


BY  HOLDING  OUT  OR  ESTOPPEL.  §  01. 

plaintiff,  therefore,  must  have  rehed  upon  the  appearances, 
and  therefore  have  known  them  at  the  time  of  contracting, 
which  is  not  true  of  evidence  tending  to  prove  actual  part- 
nership. Furthermore,  to  constitute  an  estoppel,  the  de- 
fendant must  have  been  in  fault  by  being  a  participant  in 
the  misrepresentation;  the  rights  of  dormancy  of  a  secret 
partner  may  be  destroyed  by  an  unauthorized  or  accidental 
divulging  of  his  membership  by  others,  but  a  person  not  an 
actual  partner  cannot  be  made  such  by  representations  of 
others  of  which  he  was  not  aware. 

§91.  Plaintiff's  knowledge  necessary. —  A  person  being 
liable  as  a  partner  by  holding  out  on  the  ground  of  estoppel 
solely,  is  therefore  not  liable  to  one  who  did  not  know  of 
such  holding  out  at  the  time  of  contracting.  The  holding 
out  must  antedate  the  contract,  and  the  plaintiff's  knowl- 
edge of  and  reliance  on  his  alleged  connection  must  be 
proved  as  of  that  time,  for  otherwise  the  plaintiff  was  not 
misled.' 

Thus,  where  T.'s  name  was  signed  to  partnership  articles,  with- 
out his  knowledge,  by  another,  and  he  immediately  withdrew  it, 
but  all  the  cards,  letter-heads  and  circulars  with  his  name  on  them 
were  used  until  used  up,  and  then  his  name  was  dropped,  and  it 
was  in  controversy  whether  he  knew  and  consented  or  not;  but  as 
the  plaintiff  did  not  know  of  these  representations,  T.  was  held 
not  liable  as  a  partner.' 

iDe  Berkom  v.  Smith,  1  Esp.  29;  v.  Jones,  7  B.  Mon.  456;  "VValrath  v. 

Vice  V.  Lady  Anson,  7  B.  &  C.  409,  Viley,    3  Bush.  478 ;    Grieff  v.  Bou- 

more  fully  reported  in  3  C.  «&  P.  19;  dousquie,  18  La.  Ann.  631 ;  Allen  v. 

Dickinson  v.  Valpy,  10  B.  &  C.  128,  Dunn,  15  Me.  292  (33  Am.  Dec.  614); 

140,  per  Parke,  J. ;  Baird  v.  Planque,  Palmer  v.  Piukham,  37  id.  252 ;  Wood 

1  F.  &  F.  344;  Pott  v.  Eyton,  3  C.  B.  v.  Pennell,  51   id.  52;  Fitch  v.  Har- 

32;  Martyn  v.  Gray,  14  C.   B.   N.  S.  rington,   13  Gray,    468;  8  Am.  Law 

824;  Edmundson  v.  Thompson,  2  F.  Reg.  (N.  S.)  (388;  Rimel  v.  Hayes,  83 

&    F.    504;    Benedict    v.    Davis,    2  Mo.  200;  Irvin  u.  Conklin,  36  Barb. 

McLean,    347;    Thompson    v.    First  64;   Cassidy  v.   Hall,  97  N.  Y.  159; 

Nat'l  Bank,  111  U.  S.  530;  Wright  v.  Cook  v.  Slate  Co.  36  Oh.  St.  135.  139; 

Powell,  8  Ala.  560;  Vinson  v.  Bever-  Kirk  v.  Hartman,  63  Pa.  St.  97. 

idge,  3  MacArthur  (D.  C),  597,  601;  2 Thompson  v.    First  Nat'l  Bank, 

Bowie  V.  Maddox,  29  Ga.   2^5;  Hef-  111  U.  S.  530. 
ner  r.  Palmer,  67  III,  161 ;  Maikhara 

109 


§  92.  NATURE  AND  FORMATION. 

J.  conducted  a  shop  for  E.,  paying  hini  a  percentage  on 
sales.  J/s  bank  account  was  in  his  own  name,  and  he  overdrew 
and  the  bank  sued  E.  as  a  partner  of  J.  The  licenses  to  sell  were 
in  E.'s  name  and  his  name  was  over  the  door;  but  the  bank  did  not 
know  this  and  had  never  treated  J.  as  being  a  partner  of  E.  A 
verdict  for  E.  was  held  justified.' 

The  plaintift"  may  have  known  of  the  holding  out  from  third 
persons  who  have  repeated  to  him  the  defendant's  declarations  to 
them  or  related  his  acts.* 

And  even  if  there  was  a  holding  out,  but  plaintiff  knew 
the  terms  on  which  the  defendant  was  employed,  there 
is  no  estoppel,  for  he  was  not  misled.' 

§  92.  doctrine  of  a  holding  out  to  the  world  is  errone- 
ous.—  There  is  a  statement  attributed  to  Lord  Mansfield,  that  if 
the  holding  consists  in  permitting  the  use  of  one's  name  in  the 
firm,  this  being  a  holding  out  to  the  whole  world,  there  is  a 
liability  to  the  whole  world,  even  to  those  who  may  not  have 
known  the  fact.''  This  is  entirely  inconsistent  with  the  doctrine  of 
the  foregoing  section,  and  rests  pn  no  principle,  and  must  be  con- 
sidered as  exploded.  Nevertheless  it  had,  for  a  time  at  least,  some 
influence  upon  the  law,  and  there  are  some  decisions  (see  the  next 
section)  which  may  seem  to  incline  that  way. 

It  was  these  decisions  that  led  Mr.  Parsons,  in  his  admirable  work 
upon  partnership,"  to  frame  a  most  ingenious  rule  that  a  person 
held  out  by  his  own  negligence  merely  is  liable  only  to  those  who 
knew  and  trusted  the  appearance,  but  that  a  person  held  out  by  his 
own  consent  and  connivance  is  conclusively  presumed  to  be  a  part- 
ner to  all  customers;  and  this  rule  was  approved  and  adopted 
from  Mr.  Parsons'  work  by  the  court  of  appeals  of  New  York.* 

1  Pott  V.  Eyton,  3  C.  B.  33.  Lord  Mansfield  seems  to  have  ruled 

2Maityn   v.   Gray,   14  C.  B.  N.  S.  that    Mrs.     Axtell    was    liable     be- 

824,  841 ;  Shott  V.  Streatfield,  Moo.  &  cause  she  permitted  her  name  to  be 

Rob.  9.  used  as  a  member  of  the  firm  on  bills 

SAlderson  v.   Pope,  1  Camp.  404;  sent  to  customers  and  in  the  business. 

Pratt   V.  Laiigdon,  97  Mass.  97,  100;  altbougli  the  plaintilT  did  not  know 

but  see  Stearns  v.  Haven,  14  Vt.  540,  of  it.     See  the  criticism  of  Mr.  Smith, 

546;  and    proof  of  subsequent  acts  in  Waugli  u.  Carver,  1  Smith's  Lead, 

and   declarations   to    third    persons  Cas.  507,  and   Wood  v.  Pennell,  5l 

were  admitted  in  Poole  v.  Fisiier,  G3  Me.  52. 
111.181.  5  Pars.  Part.  p.  119. 

<  In  Young  v.  Axtell   2  H.  Bl.  242.        ePoiilon  v.  Secor,  61  N.  Y.  456.   In 

110 


BY  HOLDING  OUT  OR  ESTOPPEL.  g  93. 

§  93.  Criticism  and  suggestion. —  If  there  is  anything  left 
of  Lord  Mmsfield's  rule,  it  cannot  be  as  broad  as  that  adopted  by 
the  New  York  court.  The  rule  there  attempted  to  be  laid  down 
might  have  been  more  plausibly  stated,  thus:  The  permitted  use  of 
a  person's  name  in  the  firm  style  is  proof  of  an  actual  and  not 
nominal  partnership.  This  renders  such  person  liable  independent 
of  knowledge  of  the  dealer,  and  yet  does  away  with  the  groundless 
and  harsh  conclusive  presumption  attending  every  kind  of  inten- 
tional holding  out,  and  with  the  mischievous  vagueness  of  adistinc 
tion  between  holding  out  by  consent  and  by  negligence.  Ever. 
this  suggested  proposition  is  probably  not  the  law,  but  it  is  not 
easy  to  settle  it  conclusively,  because,  where  a  person's  name  is  in 
the  firm,  the  plaintiff  is  sure  of  being  aware  of  the  holding  out  at 
the  time  of  the  contracting,  and  hence  the  point  would  not  be  pre- 
sented to  the  court  for  decision,  and  the  dicta  are  against  it.* 

The  rule,  however,  in  Poillon  v.  Secor  is  objectionable.  Acts 
and  declarations  of  the  alleged  partner  before  third  persons  and 
unknown  to  plaintiff  may  be  proved  by  him  if  they  are  evidence 
of  an  actual  partnership,  but  if  insufficient  to  prove  an  actual  part- 
nership he  must  show  a  knowledge  of  and  a  justifiable  reliance  upon 
them  on  his  part,  at  the  time  of  giving  credit  to  the  firm,  in  order 
to  charge  the  person  as  partner. '^  Moreover,  the  rule  as  stated 
in  that  case  seems  to  confuse  evidence  of  an  actual  partnership, 
and  evidence  of  a  holding  out.  The  holding  out  may  be  inten- 
tional as  to  the  one  or  two  persons  without  extending  to  others, 
which  the  rule  does  not  recognize;  and  if  negligence  can  constitute 
the  estoppel,  a  holding  out  by  negligence  may  be  to  the  whole 
world  as  well  as  to  a  few. 

this  case  Secor  allowed  his  name  to  90,  94.  The  supreme  court  of  the 
be  used  in  a  smelting  business  with  United  States  in  Thompson  v.  First 
Swan,  a  well  known  worker  of  ores,  Natl.  Bank,  111  U.S.  529,  criticises 
as  Secor,  Swan  &  Co.,  and  it  appeared  Poillon  r.  Secor  as  the  only  Ameri- 
on  bill-lieads.  aiU^ertisenients,  etc.  can  case  sustaining  the  doctrine,  and 
The  plaintiff  gave  credit  to  the  firm  says  the  notion  arose  from  a  state- 
without  knowing  of  the  holding  out  ment  attributed  to  Lord  Mansfield, 
or  trusting  it  upon  Secor's  account,  doubtless  referring  to  the  one  in  the 
and  Secor  was  iield  liable  for  the  text, 
above  reasons,  adopting  Mr.  Parsons'  i  See  §  102  and  §  1147. 
rule.  Tlie  same  ruling  was  made  in  2Fitch  v.  Harrington,  13  Gray, 
Pringle  v.  Leverich,  16  Jones  &  Sp.  468;  8  Am.  Law  Reg.  (N,  S.)688. 

Ill 


§  94.  NATURE  AND  FORMATION. 

§  04.  Probable  explanation  of  the  cases.—  Tlie  proper 
explanation  of  the  cases  given  below  lies  rather  in  the  re- 
garding representations  to  the  world  generally  of  the  fact  of 
partnership,  sach  as  using  the  name  in  the  firm  style  or  per- 
mitting it  to  be  over  the  door,  and  statements  to  or  author- 
izing commercial  agencies  to  announce  it,  as  evidence  for 
the  jury  of  the  fact  of  partnership;  and  if  it  falls  short  of 
proving  that  fact,  the  degree  of  publicity  is  evidence  cor- 
roborating plaintiff's  probable  knowledge  of  it  at  the  time 
he  gave  credit,  ^  and  with  knowledge  the  usual  principle  ap- 
plies, that  in  trusting  the  firm  he  is  presumed  to  trust  every 
member  of  it.^ 

In  Wheeler  v.  McEldowney,  60  111.  358,  plaintiff  sued  A.  and  B. 
on  a  note  for  work  done  by  him  signed  by  A.  in  the  name  of  A.  & 
Co.,  and  on  proof  that  a  title  bond  for  the  purchase  of  the  mill  had 
been  given,  made  to  A.  and  B.,  "composing  the  firm  of  A.  &  Co.," 
with  the  knowledge  of  B.,  who  made  most  of  the  payments  and 
frequently  visite.l  the  mill,  the  plaintiff  was  allowed  to  hold  B., 
although  it  was  testified  that  he  never  had  been  a  partner,  on  the 
ground  that  he  had  held  himself  out  as  such  to  the  public  and  for 
reasons  of  public  policy. 

In  Poole  V.  Fisher,  62  111.  181,  M.  had  told  a  mercantile  agency  that 
he  was  a  partner,  and  F.  at  the  time  of  purchasing  the  goods  had 
said  the  same,  as  had  also  M.,  and  he  was  held  liable  on  the  debt; 
the  court  say  that  he  is  liable  to  third  persons  generally. 

In  Thompson  v.  First  Nat'l  Bank,  111  U.  S.  530,  537,  it  was  said 
that  there  might  be  cases  where  the  holding  out  was  so  public  and 
so  long  continued  that  the  jury  could  infer  that  the  plaintiff  knew 
of  it;  and  in  Bowen  v.  Rutherford,  60  III.  41  (14  Am.  Hep.  25),  it 
was  said  that  there  must  be  such  publicity  to  the  holding  out  as  to 
afford  a  presumption  that  the  creditor  knew  of  it,  otherwise  he 
must  prove  credit  given  on  the  faith  of  it.^ 

1  Dickinson  v.  Valpy,  10  B.  &  C.  Wood  v.  Pounell,  51  Me.  53.   And  see 

128,  140,  where  Parke,    J.,  says,  "if  hereafter  under  Evidence, 

it  could  be  proved  that  the  defendant  -!  Booe    v.    Caldwell,    12  lad.    12; 

held  himself  out  — not  to  the  world,  Rizur  v.  James,  38  Kan,  221.     And 

■for  that  is  a  loose  expression,  but  to  see  Contract  with  one  partner, 

the  plaintiff  himself,  or  under  such  3  And  see  Hefner  v.  Palmer,  67  111. 

circumstances  of  publicity  that  the  IGI;   Benedict  u.  Davis,  2  McLean, 

plaintiff  knew  it  and  believed  him  to  317,  350. 
be  a  partner,  he  would   be   liable." 

112 


BY  HOLDING  OUT  OR  ESTOPPEL.  §  90. 

A  person  representing  himself  to  a  few  third  persons  as  a  part- 
ner is  not  such  a  hokling  out  to  the  worhl  as  to  render  him  liable 
to  one  who  did  not  know  of  the  representations.' 

In  Casco  Bank  v.  Hills,  16  Me.  155,  a  notice  by  surviving  part- 
ners that  the  business  of  the  late  firm  would  for  the  present  be 
carried  on  in  the  same  name  by  a  designated  one  of  their  number, 
who  is  duly  authorized  to  settle  all  matters,  was  held  to  make  them 
all  partners  by  holding  out  to  the  would,  and  liable  on  a  note  in 
the  firm  name  made  by  such  designated  partner, 

§  i)5.  Defendant's  knowletV^'e. —  To  estop  a  person  to  deny 
that  he  is  a  partner,  the  act  of  holding  out  must  be  volun- 
tary on  his  part.  Merely  being  held  out  as  partner  by  an- 
other, without  knowledge  of  it,  creates  no  liability;  for  no 
estoppel  arises  where  he  is  not  in  fault.  The  unauthorized 
use  of  one's  nauie  by  another,  who  does  not  know  of  it,  or 
not  under  such  circumstances  as  to  be  called  upon  to  con- 
tradict the  false  appearances,  is  not  a  holding  out  by  himself 
and  creates  no  estoppel  to  deny  partnership.  A  holding  out 
must  be  by  his  own  admissions,  assent  or  acts.  Thus,  that 
directors  placed  the  defendants'  n^mes  on  the  list  of  partners, 
without  their  knowledge,  and  the  plaintiffs  trusted  to  those 
named  on  the  list,  does  not  make  the  defendants  in  any  way 
liable.  "-^ 

§  96.  Acqniescence. —  But  no  particular  mode  of  holding 
out  is  necessary.  If  he  knowingly  consents  to  being  repre- 
sented as  a  partner,  no  matter  how,  he  is  liable;  and  his 
knowledge  and  consent  may  be  inferred  from  circumstances.' 
And  if  he  is  held  out  with  his  consent,  or  in  his  presence, 
or  after  his  culpable  silence,  he  is  liable  to  those  misled 
thereby.*    What  constitutes  culpability  in  remaining  silent, 

1  Markbam  v.  Jones,  7  B.  Mon.  4r)6 ;  ler,  24  Mo.  App.  76 ;  Bishop  v.  George- 
Vice  V.  Lady  Anson,  7  B.   &   C.  4p9;     son.  60  111.  484;  Campbell  u  Hastings, 

5  C.  &  P.  19;  Benedict  v.  Davis,  3  29  Ark.  512;  Cassidj'  v.  Hall,  97  N. 
McLean,  347.  Y.  159;  Denithorne  v.  Hook,  112  Pa. 

2  Fox  V.  Clifton,  6  Bing.  776;  4  M.     St.  240;  Benjaraiu  v.  Covert,  47  Wis. 

6  P.  718 ;  Hastings  v.  Hopkinson,  28  375,  384.  And  see  Gay  v.  Fretwell,  9 
Vt.  108,  114;  Swanu  v.  Sanborn,  4  Wis.  186;  Pott  v.  Eyton,  3  C.  B.  32. 
Woods,  C.  C.  625;  Re  Jewett,  7  Biss.        3  Holland  v.  Long,  57  Ga.  36. 

528;  15  Bankr.  Reg.  126 ;  Cole  z?.  But-        4  Nicholson  v.  Moog,  65  Ala.  471; 
Vol.  1  —  8  113 


§  97.  NATURE  AND  FOR^IATION. 

SO  as  to  justify  an  inference  of  acquiescence,  must  depend 
on  the  facts  of  each  case. 

g  1)7.  illustrations. —  In  Potter  v.  Greene,  9  Gray,  309,  a 

paragraph  appeared  in  a  newspaper,  to  which  Greene  was  a  sub- 
scriber, stating  that  a  company  of  gentlemen  had  bought  the  Saga- 
more Thread  Co. 's  property,  and  that  Greene  was  one  of  them,  and 
was  to  be  in  charge.  The  paragraph  did  not  purport  to  be  inserted 
by  the  partnership,  and  it  was  held  not  admissible  as  evidence  of  a 
holding  out,  though  Greene  never  requested  a  retraction.  It  was 
doubtful  whether  he  ever  knew  it;  but  the  court  said  that  if  he  did 
see  it,  they  were  of  opinion  that  he  was  under  no  obligation,  legal  or 
moral,  to  give  it  a  contradiction. 

In  Newsome  v.  Coles,  2  Camp.  617,  three  brothers  had  been  part- 
ners, after  their  father's  death,  as  Thomas  Coles  &  Sons,  and  dis- 
solved; two  of  them  going  into  a  new  business,  and  one  continuing 
the  old  business  in  the  old  name;  due  notice  of  dissolution  was 
published.  A  person  who  had  never  dealt  with  them  gave  credit 
to  the  single  brother,  and  on  seeking  to  hold  the  other  two  as 
partners,  it  was  held  that  the  latter  were  not  bound  to  take  any 
steps  to  prevent  the  use  of  the  old  name.     (See  §  100,  infra.) 

In  Polk  V.  Oliver,  56  Miss.  566,  570,  it  is  suggested  that  a  person 
knowing  he  is  held  out  as  a  partner  by  another  is  not  bound  to 
interfere;  but  that  if  he  was  once  a  partner,  and  his  notice  of  with- 
drawal was  not  very  extensive,  he  cannot  allow  the  world  at  large 
to  be  ignorant  of  the  unauthorized  use  of  his  name.* 

In  Wright  v.  Boynton,  37  N.  H.  9,  a  person  appointed  as  agent 
to  transact  all  business  for  the  defendant,  added  a  person  as  part- 
ner of  the  principal  without  authority,  and  it  being  sought  to  hold 
the  principal  for  the  acts  of  such  person,  it  was  held  that  the 
principal  was  not  exonerated  by  mere  silence;  that  he  must  dissent 
or  give  notice  in  a  reasonable  time,  or  assent  will  be  presumed;  and 
that  a  person  knowing  he  is  held  out  as  a  partner  must  publicly 
disclaim  it. 

Craig  V.  Alverson,  G  J.  J.  Mar.  609 ;  this  comes  to  the  plaintiff's  knowl- 

Wood  V.  Pennell,  51  Me.  52;  Kritzer  edge,    before  selling,   although  the 

V.  Sweet,  57  Mich.  617.  plaintiff  had   not  previously   heard 

1  And  see  Wood  v.  Pennell,  51  Me.  that  he  was  a  partner,  but  there  had 

52.      And    so    if  a  retired    partner  been  no  notice  of  dissolution.     Ben- 

knowingly  allows  a  reputation  to  ex-  jam  in  v.  Covert,  47  Wis.  375,  384. 
ist  that  he  is  still  in  the  firm,  and 

114 


BY  HOLDING  OUT  OR  ESTOPPEL.  §  98. 

In  Tlirasen  v.  Lathrop,  104  Pa.  St.  3G5,  the  city  directory  gave 
Domenec  Ilimseii  as  a  partner,  whereas  he  was  only  manager,  and 
his  son  Domenec  0.  Ihmsen  was  the  partner;  and  the  court  said 
this  coiikl  not  be  received  without  evidence  that  he  had  seen  it  and 
made  no  effort  to  have  it  changed;  but  that  if  he  did  object  and  re- 
fused to  pay  for  the  directory  until  corrected,  and  a  promise  was 
given  to  correct  it  the  next  year,  the  jury  could  give  no  weight  to 
the  evidence. 

In  Rittenhouse  v.  Leigh,  57  Miss.  697,  the  defendant,  on  hearing 
she  was  held  out  as  a  partner,  remonstrated,  and  the  firm  promised 
to  withdraw  her  name;  they  broke  the  promise;  but  she  was  not 
shown  to  have  been  aware  of  this,  and  the  court  said  she  was  not 
compelled  to  do  more  than  make  the  request. 

In  Bowie  v.  Maddox,  29  Ga.  285,  it  was  held  that  the  fact  that 
defendant  manifested  surprise  when  told  that  he  was  regarded  as  a 
partner  is  not  competent  evidence,  for  it  is  a  mere  declaration,  by 
acting,  in  his  own  favor. 

§  98.  Prior  iiiiknowii  acts  of  liolding  out. —  Estoppel  being 
the  sole  ground  upon  which  a  person  c?ai  be  charged  as  a 
partner  by  holding  out,  and  not  the  doctrine  of  a  general 
liability  by  a  holding  out  to  the  world,  independent  of  the 
plaintiff's  knowledge,  it  would  follow  that  acts  of  holding 
out,  of  which  the  plaintiff  was  unaware,  cannot  be  admitted 
even  to  corroborate  the  acts  known  and  relied  upon.  The 
plaintiff  cannot  show  all  the  acts  of  the  defendant  and 
prove  afterwards  what  came  to  his  knowledge.^ 

1  Rimel  v.  Hayes,  83  Mo.  200,  209.  occasion  Harrington  made  a  similar 

Nevertheless  several  of  the  few  cases  note,    and    Hill    remonstrated    and 

in   which   this    apparently    obvious  made  Harrington  promise  not  to  use 

principle  was  brought  directly  to  the  ^^'^  name  so  as  to  hurt  him ;  and  this 

attention  of  the  court  seem  to  have  ^as  construed  to  mean  not  to   use 

disregarded  it.     In  Smith  v.  Hill,  45  ^^^  °ame  beyond  an  ability  to  indem- 

Vt.  90  (12  Am.  Rep.  189),  Harrington  nifj  !"•».  a  risk  that  Hill  ran  and 

gave  a  note  signed  Hill  &  Co.  with-  not  those  who  received   the  paper, 

out  Hill's  authority,  Hill  not  being  See,  also,  Slader.  Pasciial,  67  Ga.  541. 

his  partner,  and  the  payee  took  the  In   Conklin  v.  Barton,  43  Barb.  435, 

note  on  the  credit  of  Hill's  name,  plaintiff  sued  the  defendants  as  part- 

and  it  was  held  that  he  could  prove  ners  for  liquor  sold  by  him  to  one  of 

prior  acts  of  holding  out  by  Hill  of  them.     He  failed  to  prove  a  partner- 

which  he  was  not  aware  at  the  time  ship   between    the   defendants,    but 

he  took  the  note;  as  that  on  a  prior  proved  acts  of  holding  out  prior  to 

115 


§  99.  NATURE  AND  FORMATION. 

§  99.  What  constitutes  a  holding  out.— Owing  to  the  fact 
that  the  question  of  holding  out  is  for  the  jury,  there  must, 
be  conflicting  findings  upon  very  similar  facts;  and  Mr. 
Justice  Lindley'  has  given  an  excellent  example  of  this  in 
Wood  V.  Duke  of  Argyll,  6  M.  &  Gr.  928,  and  Lake  v.  Duke 
of  Argyll,  6  Q.  B.  477.  Nevertheless,  the  courts  have  fre- 
quently passed  upon  the  sufficiency  and  even  relevancy  of 
evidence,  and  from  these  may  be  gathered  some  principles 
as  well  as  illustrations. 

If  a  person  is  authorized  by  a  firm  to  hold  himself  out  as 
their  partner,  and  does  so,  this  is  a  holding  out  by  the  part- 
ners of  themselves  as  his  partner.* 

The  acts  or  language  must  reasonably  import  member- 
ship in  the  firm  and  not  merely  an  interest,  for  a  person 
may  have  an  interest  in  the  firm  without  being  a  partner 
and  have  a  right  to  announce  that  fact;  the  question  is, 
what  does  the  language  used  import,  and  not  what  inter- 
pretation the  creditor  placed  upon  it. 

Thus,  the  name  of  a  firm  over  a  store,  and  used  by  a  person  man- 
aging the  store,  may  be  evidence  that  he  is  their  agent,  but  is  not 
the  slightest  that  they  are  his  partners.^     So  where  partners  are 
trying  to  bolster  up  the  credit  of  a  corporation  and  invite  persons 
to  trust  it  by  saying  ''  we  are  the  company,"  and  that  the  firm 
backed  the  company,  and  by  other  assurances  of  an  interest  in  it, 
whatever  be  the  liability  of  the  partners  as  guarantors  or  promis- 
ors, this  is  no  holding  out  of  a  partnership  with  the  corporation.* 
So  in  an  action  against  two  persons  as  partners  in  an  opera  house 
to  collect  the  amount  of  printing  bills,  neither  the  statements  of 
one  of  the  defendants  that  he  was  going  into  the  business,  nor  the 
fact  that  he  did  an  auction  business  in  the  same  building  and  sold 
tickets  for  the  opera  and  was  its  treasurer,  and  announced  as  treas- 
urer on  the  bills,  are  calculated  in  any  degree  to  give  the  impres- 
sion that  he  was  a  partner.'     So  advertising  thus,  "from  the  first 

the  sale.     Evidence  that  both  the  de-  i  Partnership,  vol.  1,  p.  53. 

fendants  gave  the  bond  to  obtain  a  2Hinnian  v.  Littcll,  23  Mich,  484. 

tavern-keeper  s  license  was  admitted  3  Gilbraith  v.  Lineberger,  G9  N.  Ca. 

as  corroborative  of  the  acts  of  holding  145. 

out,  although  unknown  to  the  plaint-  <  McLewer  v.  Hall,   103  N.  Y.  639, 

iff  at  the  time  of  making  the  sales,  » Parker  v.  Fergus,  43  111,  437. 

116 


BY  HOLDING  OUT  OR  ESTOPPEL.  §  100. 

instant  B.  has  an  interest  in  our  establishment;  we  trust  with  his 
additional  aid  we  shall  be  able  to  offer  further  inducements,"  etc., 
signed  F.  &  Co.,  was  held  not  to  be  a  declaration  of  partnership, 
because  not  implying  that  B.  was  a  member  of  the  firm;  in  fact, 
the  use  of  "we"  and  "our"  and  "his"  seems  to  repel  the  implica- 
tion.' 

But  the  person  need  not  be  designated  by  name;  a  pertinent  de- 
scription, sufficiently  identifying  him,  given  by  his  authority,  is 
sufficient." 

The  expression  of  an  intention  or  willingness  to  become  a  part- 
ner is  not  a  representation  that  he  is  one.^ 

§  1 00.  retaining  tlie  old  name. —  Where,  after  a  duly- 
published  dissolution,  the  continuing  partner  retains  the  old 
name  with  the  acquiescence  of  the  retired  partner,  with  or 
without  the  fact  that  the  latter  remains  in  the  store,  this  is 
sufficient  evidence  of  a  holding  out  to  any  person  misled.* 

It  is  to  be  remembered  here,  however,  that  when  a  firm  is 
dissolved  by  the  death  of  a  partner,  this  act  of  nature  must 
be  taken  notice  of  by  the  whole  world,  and  no  notice  of  dis- 
solution is  necessary  to  release  his  estate,  from  liability  on 
subsequent  contracts,  nor  does  the  continued  use  of  the  old 
nam^  by  the  surviving  partners  charge  it  or  the  executor 
with  liability.  The  doctrine  of  holding  out  has  no  appli- 
cation; it  is  like  the  case  of  a  person  held  out  without  his 
knowledge.     Nor  if  the  executor  continue  business  under 

1  Vinson  v.   Beveridge,   3  MacAr-  Dorn,  34  Ga.  213,     Especially  where 

thur  (D.  C),  597.  it  is  the  principal  part  of  tlie  firm 

2Martyn  v.   Gray,   14  C.  B.  N.  S.  name  and  is    retained  by  consent, 

824,  841.  Speer  v.  Bishop,  24  Oh.  St.  598.  That 

3  Bourne  v.  Freeth,  9  B.  &  C.  632;  merely  keeping  the  old  name  over 
Reynell  v.  Lewis,  15  M.  &  W.  517.  the  door  is  not  sufficient  of  itself  to 
And  see  §  79,  supra.  render  the  retired    partner  liable, 

4  And  see  Notice  of  Dissolution.  Boyd  v.  McCann,  10  Md.  118.  See 
Re  Krueger,  2  Low.  66;  5  Bankr.  Newsome  r.  Coles,  §97,  sitpra.  And 
Rrg.  439;  State  v.  Wiggin,  20  Me.  the  fact  that  persons  dealing  with 
449,  Tregerthen  v.  Lohrum,  6  Mo.  business  houses  pay  very  little  atten- 
App.  576;  Jordan  v.  Smith,  17  Up.  tion  to  their  letter-heads  was  re- 
Can.  Q.  B.  590,  with  a  change  of  marked  upon  by  Campbell,  J.,  in 
name  from  S.  &  P.  to  S.  &  Co. ;  Wait  Hastings  Natl.  Bank  v.  Hibbard,  48 
V.  Brewster,  31   Vt.   516;  Fleming  u.  Mich.  452,  456. 

117 


§  101.  NATURE  AND  FORMATION. 

the  old  name,  for  he  cannot  pledge  the  general  estate  unless 
explicitly  authorized  so  to  do. 

§  101.  language  amounting  to  holding  out. —  So  the 

employment  by  the  owner  of  a  business  of  a  person  on  a  share  of  the 
profits,  and  using  "  &  Co."  after  the  owner's  name,  was  held  a  hold- 
ing out  as  to  the  landlord,  who  believed  the  clerk  to  be  a  partner; ' 
but  the  clerk's  use  of  ''&  Co."  after  his  employer's  name  may  not 
be  a  holding  out  of  himself  as  partner.'' 

Taking  part  in  the  transaction  of  business  in  such  a  way  or  by 
the  use  of  such  language  as  to  lead  one  trusting  the  firm  to  believe 
the  defendant  was  a  principal;'  or  silence  when  introduced  or  re- 
ferred to  as  a  partner,**  or  as  one  who  would  be  a  partner  after  a 
certain  date,  and  goods  were  then  sold  to  the  new  firm  to  be  paid 
for  after  that  date;  ^  or  using  the  word  we,  or  speaking  of  the  busi- 
ness as  his;*  but  such  expressions  alone  are  manifestly  very  weak 
evidence,  for  they  may  naturally  refer  to  the  party's  actual  interest 
as  clerk  or  employee.'' 

In  Ihmsen  v.  Lathrop,  104  Pa.  St.  365,  Domeneck  0.  Ihmsen 
was  a  partner  and  his  father,  Domeneck  Ihmsen,  was  employed  in 
the  firm  as  its  manager,  with  power  to  sign  the  firm  name  to 
checks,  notes,  etc.,  and  this  fact  of  his  using  the  firm  name  with 
the  nearly  identical  name  was  held  to  render  him  liable  by  holding 
out  on  a  note  signed  by  him  in  the  firm  name,  without  other  evi- 
dence, although  the  exercise  of  a  power  to  sign  the  firm  name  does 
not  ordinarily  require  the  statement  that  the  signer  is  not  a  part- 
ner. 

In  Cassidy  v.  Hall,  97  N.  Y.  159,  the  facts  that  employees  re- 
ceive a  share  of  the  profits  as  compensation,  have  large  powers,  and 
are  exceptionally  active  in  their  efforts  to  place  the  concern  on  a 

1  Brown  v.  Pickard  (Utah),  9  Pac.  <  Barcrof t  v.  Haworth,  29  Iowa, 
Rep.  573;  French  v.  Barrow,  49  Vt.  462;  Manson,  Town  of,  v.  Ware,  63 
471.  Iowa,  345;  Burgan  v.  Gaboon,  1  Pen- 

2  Edmundson  v.  Thompson,  2  F.  &    nypacker  (Pa.),   320 ;  Lewis  v.  Alex- 
'f.  564.  ander,  51  Tex.  578. 

3  Sun  Ins.  Co.  v.  Kountz  Line,  122  SBHss  v.  Swartz,  7  Lans.  187;  64 
U.  S.  583;  Bruginan  v.  McGuire,  32    Barb.  215. 

Ark.  733;  Sherrod  v.  Langdon,  21  ewooilward  v.  Clark,  30  Kan.  78: 
Iowa,  518;  Parsliall  v.  Fisher,  43  Thomas  v.  Green,  SO  Md.  1;  Ri(pey 
Mich.  529;  Smith  v.  Smith,  7  Foster  v.  Evans,  22  Mo.  157;  Gates  v.  Wat- 
(N.  II.),  244;  Shafer  v.  Randolph,  99    son,  54  Mo.  585. 

Pa.  St.  250.  7  See  Cassidy  v.  Hall,  97  N.  Y.  159. 

118 


BY  HOLDING  OUT  OR  ESTOPPEL.  §  103. 

good  basis  with  a  view  of  ultimately  buying  it  out,  were  held  not  to 
be  so  inconsistent  with  their  relation  as  employees  as  to  constitute 
them  partners,  though  accompanied  by  declarations  as  to  its  finan- 
cial responsibility,  sufficient  to  constitute  a  guaranty. 

In  Town  v.  Hendee,  27  Vt.  258,  employing  one  as  agent  to  sell 
only  and  not  to  buy,  and  writing  to  plaintiff  that  "  whatever  goods 
were  sold  to  such  agent  to  be  sold  in  the  store  with  our  goods  he  can 
pay  for  out  of  the  avails  of  the  goods,"  does  not  hold  out  the  agent 
as  authorized  to  buy  in  the  employers'  names,  but  merely  agrees 
that  the  proceeds  of  their  own  goods  may  go  to  pay  for  the  agent's 
purchases  for  himself. 

In  Saufley  v.  Howard,  7  Dana,  367,  the  fact  of  receiving  the 
goods,  for  the  price  of  which  the  note  in  suit  was  given,  in  boxes 
marked  with  a  firm  name  composed  of  defendants'  names,  was  held 
sufiicieut  evidence  of  a  holding  out. 

In  Humes  v.  O'Bryan,  7-i  Ala.  64,  83,  it  was  said  that  the  fact 
that  two  persons  were  actually  partners  in  a  planting  or  farming 
business  was  a  link  in  the  evidence  to  prove  that  one  of  them  was 
held  out  as  the  other's  partner  in  a  store. 

§  102.  In  tort. —  Liability  arising  from  holding  out  is  not 
confined  to  actions  on  contract,  but  may  arise  in  torts,  as 
for  deceit  and  false  warranty  in  a  sale  of  sheep,  in  which 
sale  defendant  participated,^  or  for  damages  to  a  horse  and 
buggy  let  to  the  supposed  firm.^ 

In  Stables  v.  Eley,  1  C.  &  P.  614,  a  retired  partner's  name  was 
used  by  the  continuing  partners,  and  remained  upon  a  wagon  used 
by  them,  and  one  of  their  drivers  negligently  ran  over  the  plaint- 
iff. The  retired  partner  was  held  liable.  Where  is  the  estoppel  in 
such  a  case?  Can  the  plaintiff  show  that  he  would  not  have  been 
run  over  but  for  the  name?  That  he  was  induced  to  sue  a  wrong 
party  does  not  seem  sufficient,  for  it  would  apply  to  a  holding  out 
after  the  accident.* 

§  103,  Confers  no  rights  inter  se. —  Nor  does  a  holding  - 
out  confer  any  rights  between  the  partners  as  against  each 

1  SheiTod  V.  Langdon,  21  Iowa,  the  doctrine  that  a  name  in  the  firm 
518.  style  is  proof  of  actual  and  not  nom- 

2  Maxwell  u.  Gibbs,  33  Iowa,  32.         inal  partnership,  if  such   were  the 
^  The  case  might  be  sustained  on    law.     See  §  98. 

119 


g  104.  NATURE  AND  FORMATION. 

other  in  relation  to  the  property  in  the  absence  of  liabihty 
inter  se  for  misconduct. 

The  nominal  partner,  who  has  paid  some  of  the  debts,  is 
a  mere  simple  contract  creditor  of  the  person  or  firm  whose 
debts  he  discharged  and  has  no  lien  upon  the  assets,  but 
must  pursue  his  remedy  at  law  like  any  other  creditor.^ 
Hence,  an  employee  who  knows  he  is  not  a  partner,  but  is 
being  extensively  held  out  and  trusted  as  such,  is  not  enti- 
tled to  an  injunction  and  receiver  to  prevent  misapplication 
of  the  funds,  and  for  an  adjustment  of  the  affairs  of  the  firm, 
though  he  is  liable  for  debts,  for  he  has  no  lien."  Hence 
a  partner,  by  holding  out,  has  no  lien,  and  therefore  the 
joint  creditors  obtain  through  him  no  priority  in  the  distri- 
bution of  the  supposed  joint  assets  over  individual  creditors, 
for  there  are  no  joint  assets.^ 

§  104.  Strangers,  how  affected. —  From  the  fact  that  the 
liability  is  only  to  those  who  gave  credit,  it  follows  that 
persons  who  give  no  credit  cannot  take  advantage  of  the 
acts,  nor  are  bound  by  them. 

Thus,  a  creditor  of  one  held  out  as  a  partner,  but  not 
really  such,  cannot  sustain  an  attachment  on  the  goods  of 
the  supposed  firm  against  the  debtor  who  has  no  interest  in 
them.* 

In  Barrett  v.  Smith,  17  111.  565,  S.,  a  banker,  under  the  name  of 
S.  &  Co.,  employed  a  teller,  who  gave  bond  for  fidelity  in  his  office 
with  defendants  as  his  sureties.  S.  afterwards  held  out  one  W.  as 
his  partner,  and  it  was  held  that  the  defendants  had  a  right  to  sup- 
pose that  a  new  firm  had  been  formed  and  that  they  were  no  longer 
answerable  on  the  bond,  and  may  therefore  have  relaxed  their  vig- 
ilance over  the  teller's  conduct,  and  were  not  liable.     The  force 

1  Stone  V.  Manning,  3  111.  530;  from  the  reach  of  creditors,  an  in- 
Glenn  v.  Gill,  2  Md.  1.  junction    and    receiver    would    be 

2  Kerr  v.  Potter,  6  Gill,  404;  Nut-    granted. 

tingu  Colt,  7  N.  J.  Eq.  539.  In  the  3  Glenn  v.  Gill,  2  Md.  1;  Kerry, 
latter  case,  however,  p.  543,  it  was  Potter,  G  Gill,  404,  on  the  same  part- 
said  that  if  there  were  evidence  that  nership. 

the  other  partner  had  betrayed  the  ■*  Allen  v.   Dunn,    15   Me.    292;  33 

complainant's  conhdence  and  showed  Am.    Dec.    614;  Partridge   V.    King- 

a  disposition  to  withdraw  the  assets  man,  130  Mass.  476. 

120     ' 


BY  HOLDING  OUT  OR  ESTOPPEL.  §  105. 

of  the  case  as  an  authority  is,  however,  dimiuished  by  the  fact 
that  W.  was  an  actual  partner.* 

§  105.  Creditors,  how  affected  —  Reputed  ownership. —  A 

doctrine  called  that  of  reputed  ownership  arose  under  a  pro- 
vision of  the  English  bankrupt  law  requiring  property  in 
the  possession,  ordei*  or  disposition  of  a  person  as  the  re- 
puted owner,  with  the  consent  of  the  real  owner,  to  be 
treated  as  the  property  of  such  possessor.  Under  this  doc- 
trine, if  an  owner  of  property  holds  out  others  as  his  part- 
ners, the  creditors  of  the  supposed  firm  can  demand  a 
distribution  of  the  property  as  if  there  were  an  actual  part- 
nership, and  thus  retain  the  priority  on  distribution  which 
they  may  have  relied  upon.  We  have  seen  that  the  osten- 
sible partner  may  be  regarded  as  the  sole  owner  of  the  joint 
property,  but  not  on  distribution  in  bankruptcy  under  this 
clause,  for  the  possession  of  one  partner  is  not  inconsistent 
with  ownership  in  his  firm,  each  partner  being  himself  an 
owner;  but  a  sole  owner  who  holds  the  goods  out  as  belong- 
ing to  his  firm  makes  a  reputed  ownership  inconsistent 
with  the  actual,  and  is  held  to  the  appearance  he  has  cre- 
ated. 

In  Be  Rowland,  L.  R.  1  Ch.  App.  421,  C.  contracted  to  employ 
R.  on  a  salary  and  share  of  profits,  they  to  become  partners  in  the 
future,  and  the  business  to  be  in  the  name  of  C.  &  Co.  Both  be- 
came bankrupts.  The  property  which  belonged  to  C.  was  applied 
to  the  joint  creditors.  The  court  say  that  reputed  ownership  has 
nothing  to  do  with  the  case;  but  in  Ex  parte  Hay  man,  8  Ch.  D. 
11,  it  is  said  that  reputed  ownership  is  the  real  reason  for  that 
decision. 

ila    Somerset    Potter    Works    v.  have  rights  and  are  therefore  sub- 

Minot,  19  Gush.    592,    595-6,  where  ject  to  the  correlative  right  of  pri- 

creditors  of  a  firm  desiriug  to  share  ority    of    separate  creditors   in   the 

imri  passu  with  the  individual  cred-  separate  estate.     The  contrary,  how- 

itors  of  one  partner  in  his  separate  ever,  was  ruled  in   a  case  equally 

property,  which  would  yield  more  strong  on  the  facts  as  to  the  cred- 

than  the  firm  assets,  offered  to  prove  itors,    though  the  person  held   out 

that  the  firm  was  nominal  merely;  knew  he  was  no  partner.     Kerr  v. 

but  the  court  said  that  as  the  parties  Potter,  6  Gill,  404,  and  Glenn  v.  Gill, 

had  assumed  to  be  partners  and  dealt  2  Md.  1. 
as  such,  persons  dealing  with  the  firm 

121 


§  105. 


NATURE  AND  FORMATION. 


Where  partners,  by  secret  arrangement  or  by  their  articles,  each 
own  a  specific  part  of  the  stock,  and  there  is  no  joint  ownership, 
the  doctrine  of  reputed  ownership  applies,  and,  as  to  creditors 
without  notice,  the  assets  will  be  regarded  as  joint.  Hence  a 
mortgage  by  one  of  his  interest,  to  secure  an  individual  debt  to  his 
partner,  will  be  postponed  to  claims  of  joint  creditors  on  distribu- 
tion; '  and  so  if  the  partners  divide  up  the  assets  but  continue  to 
hold  and  deal  with  them  as  joint  property,  subsequent  joint  debts 
will  be  held  superior  on  distribution  to  rights  derived  from  the  in- 
dividuals.'' 

But  apart  from  this  provision  of  the  bankrupt  law,  the 
doctrine  of  estoppel  which  applies  to  the  partnership  does 
not  apply  to  change  the  title  to  its  property,  and  if  the  part- 
ners are  estopped,  the  individual  creditors  of  the  actual 
owner  are  not  estopped  to  obtain  a  lien  upon  the  assets  as 
against  the  creditors  of  the  business  establishment  or  sup- 
posed firm.     Again,  the  creditors'  priority  arises  out  of  and 


1  Elliot  V.  Stevens,  38  N.  H.  311. 

2  Molina  Wagon  Co.  v.  Rummell,  2 
McCrary,  307 ;  12  Fed.  Rep.  658 ;  14 
id.  155.  And  see  Birksu.  French,  21 
Kan.  238;  Hamill  v.  Willett,  6 
Bosw.  533;  Grasswitt  v.  Connalij'-,  27 
Gratt.  19;  Ee  Tomes,  19  Bankr.  Reg. 
36.  This  doctrine  has  also  been 
placed  upon  the  ground  of  estoppel ; 
creditors  having  relied  not  merely 
upon  the  personal  responsibility  of 
tiie  nominal  partners,  but  upon  an 
expected  priority  in  the  partnership 
pro[)erty,  and  on  this  ground  the 
actual  partner  and  those  claiming 
under  him,  as  his  assignee  for  the 
benefit  of  creditors,  have  been  lield 
estopped  as  against  such  creditors  to 
deny  the  partnership  and  the  conse- 
quent preference  in  the  distribution 
of  its  assets  of  those  who  trusted  the 
supposed  firm.  Kelly -y.  Scott,  49  N. 
Y.  595.  And  see  Hillman  v.  Moore,  3 
Tenn.  Ch.  454. 

In  Williams  v.  Butler,  35  111.  544, 


Mrs.  A.,  living  in  Massachusetts, 
gave  her  son  general  power  of  attor- 
ney to  manage  and  invest  for  her  in 
Chicago.  He  made  a  partnership  be- 
tween her  and  W.  as  W.  &  Co., 
which  was  carried  on  for  two  yeara 
without  her  knowledge,  she  merely 
taking  such  sums  or  profits  as  were 
sent  to  her.  X.,  an  individual  cred- 
itor of  W.,  having  levied  upon  the 
effects,  W.  and  Mrs.  A.  confessed 
judgments  in  favor  of  one  R.  and 
others,  and  R.  filed  a  bill  asking  to 
have  the  proceeds  of  X.'s  execution 
applied  to  their  judgments,  Mrs.  A. 
filing  an  answer  admitting  the  part- 
nership and  concurring  in  the  prayer. 
The  prayer  was  granted,  on  the 
ground  that  ratification  of  the  agent's 
act  established  a  partnership,  and, 
tliough  generally  ratification  will 
not  relate  back  to  cut  off  intervening 
rights,  yet  for  the  protection  of  a 
clearly  superior  equity  it  would 
do  so. 


122 


BY  HOLDING  OUT  OR  ESTOPPEL.  §  107. 

through  the  equity  of  each  partuer  to  have  the  debts  paid 
with  the  assets,  and  as  a  nominal  partner  has  no  such 
equity,  it  follows  that  the  business  creditors  have  no  prefer- 
ence over  the  avowedly  individual  creditors  of  the  actual 
owner  of  the  business  independent  of  the  provisions  of  the 
bankrupt  law.* 

In  Hillman  v.  Moore,  3  Tenn.  Ch.  454,  a  separate  creditor  had 
obtained  a  legal  right  by  levy  on  and  sale  of  the  property  under  a 
judgment  against  the  actual  owner,  and  his  title  was  held  superior 
to  that  of  the  reputed  partnership's  creditors.  Kelly  v.  Scott,  cited 
in  the  previous  section,  is  distinguished  on  the  ground  that  the  es- 
toppel upon  the  partners  reached  those  who  claimed  through  them, 
to  wit,  the  assignee  for  creditors. 

§  106.  Individual  using  a  firm  name. —  Where  a  person 
carries  on  business  in  a  firm  name  without  having  a  part- 
ner, the  same  reason  applies  as  in  case  of  a  nominal  part- 
ner,  and  creditors  of  the  supposed  firm  have  no  priority 
over  his  other  creditors  on  distribution.^  And  a  partner 
may  make  himself  severally  liable  by  holding  himself  out 
as  the  only  member  of  a  firm.' 

§  107.  Two  firms  using  same  name. —  There  is  another 
species  of  holding  out  which  occasionally  occurs,  as  where 
there  are  two  firms  of  the  same  name  and  in  the  same  kind  or 
a  similar  kind  of  business  in  the  same  locality.  If  the  two 
houses  are  composed  of  the  same  individuals,  they  are  in  law 

1  Swan  V.  Sanborn,  4  Woods,  C.  C.  iDartner,  and  the  mortgaged  property 

625 ;  Glenn  v.  Gill,  2  Md.  1 ;  Hillman  as  partnership  property,  from  show- 

V.  Moore,  3  Tenn.   Ch.  454;  Graben-  ing,  as  against  subsequent  attaching 

heimer  v.  Rindskoff,  64Tex.  49.    And  partnership  creditors,  that  the  mort- 

see  Kerr  v.  Potter,  6  Gill,  404.     And  gagor  was  not  really  a  partner,  and 

for  this  reason  an  assignment  for  the  that  the  mortgage  is   therefore  the 

benefit  of  creditors,  preferring  sepa-  prior  lien.     Taylor  v.  Wilson,  58  N. 

rate  to  business   creditors,  has  been  H.  465. 

upheld  by  the  actual  owner  incase        sgcuU's  Appeal  (Pa.  1886),  7  Atl. 

of    a    nominal    partnership.     Whit-  Rep.  588;  Miller  u  Creditors,  37  La. 

worth  V.  Patterson,  6  Lea,  119.     And  Ann.  G04;  2  Bell's  Com.  on  Law  of 

a  mortgagee  of  a  person  is  not  pre-  Scotland,  625. 

vented   by  the  fact  that  the   mort-        ^Bonfield  v.    Smith,    12  M.  &  "W. 

gagor  holds  himself  out  to  others  as  a  405 

123 


§  107.  NATURE  AND  FORMATION. 

but  one  firm;  but  if  there  is  a  partner  in  one  who  is  not  in 
the  otlier,  they  are  distinct  firms.  In  the  latter  case  it  may 
be  difficult  to  tell  which  is  liable.^ 

The  intent  when  the  difference  is  known  will  govern,  if 
ascertainable;  or  if  the  controversy  grows  out  of  a  transac- 
tion in  the  scope  of  the  business  of  one  firm  and  not  of  the 
other,  or  a  purchase  suitable  to  one  and  not  to  the  other,  or 
if  the  avowed  purpose  of  the  contract  points  to  one  firm, 
these  facts  will  be  final;  -  or  if  one  of  the  firms  has  gone  out 
of  business,  that  identifies  the  other  as  the  debtor.' 

If  two  persons  have  two  kinds  of  business  with  a  dormant  part- 
ner in  one  of  them,  a  note  in  the  firm  name  has  been  held  presum- 
ably to  be  by  the  firm  not  containing  the  dormant  partner.* 

But  it  sometimes  happens  that  a  person  is  deceived  by  the  name 
and  circumstances  into  beUeving  he  is  dealing  with  the  firm  he  ia 
not  dealing  with,  and  in  such  cases  he  can  hold  the  other  firm.* 

Where  a  father  sold  out  his  busine&s  to  his  son,  of  the  same  name, 
and  advertised  the  fact,  and  a  person  who  had  never  dealt  with  the 
concern  before,  came  to  the  store  and  sold,  he  cannot  hold  the  father; 
the  old  signs  and  letter-heads  were  used,  but  as  he  did  not  know 
their  significance,  he  was  not  misled  by  them,  nor  even  if  he  knew 
the  father  had  once  owned  the  store.^  But  to  a  former  dealer 
without  notice  of  the  dissolution,  the  father  is  liable.'' 

1  Lord  Kenyon  in  the  last  century,  452 ;  Mechanics'  &  Farmers'  Bk.   v. 

in  Baker  v.  Charlton,  Peake,  80,  de-  Dakin,  24  Wend.    411;  Re  Munn,  3 

c-ided  tliat  if  several  firms  had  the  Biss.  442. 

same  name,  a  partner  in  one  could  » Jones  v.  Parker,  CO  N.  H.  31. 

not  show  that  a  bill  in  the  firm  name  *  Fosdick  v.  Van  Horn,  40  Oh.  St. 

Avas  drawn  on  account  of  the  part-  459. 

nersiiip    in    which    he   was   not    a  5  gpencer  u.  Billing,  16  Oli.  St.  75; 

member.     In    McNair    v.    Fleming,  Gushing  v.  Smith,  43  Tex.  261 ;  Beall 

cited  in  Davison  r.  Robertson,  3  Dow.  v.   Lowndes,  4  S.   Ca.  258;  Hastings 

218,  229,  half  a  dozen  firms  did  busi-  Nat.   Bk.  v.  Hibbard,  48  Mich.  452, 

ness  in  the  same  name,  and  it  was  458  {dictum);   Spencer  v.    Billing.  3 

held  that  unless  the  liolder  of  a  bill  Camp.   310;  Swan  v.  Steele,  7  East, 

can  be  shown  to  have  knowledge  of  210;  3  Smith,  199.    And  see  Tarns  v. 

which  firm  drew  it,  he  can  sue  them  Hitner,  9  Pa.  St.  441. 

all.  *>  Preston    v.    Foellinger,    24    Fed. 

2Elkin   V.    Green,    13    Bush,    612;  Rep.  680. 

Gushing  v.  Smith.  43  Tex.  261 ;  Hast-  ^  Elverson  v.  Leeds,  97  Ind.  336 ;  49 

ings  Nat.  Bk.  v.   Hibbard,  48  Midi.  Am.  Rep.  458. 

124 


BY  HOLDING  OUT  OR  ESTOPPEL.  §  109. 

§  108.  Deceptive  similarity  of  names. —  So,  also,  if  the 
firms  have  designedly  adopted  names  closely  similar  for  the 
purpose  of  misleading  the  puhlic,  the  act  of  a  common  agent 
of  one  may  bind  the  other  in  favor  of  a  person  thus  de- 
ceived. 

Thus  where  the  individuals  composing  Adams  &  Co., 
widely  and  favorably  known  as  an  express  company,  formed 
an  additional  partnership,  composed  mainly  of  the  same  in- 
dividuals, in  the  name  of  Adams  &  Co.'s  Western  Express, 
the  similarity  of  names  being  with  the  design  of  obtaining 
patronage,  both  firms  employing  a  common  agent,  who  con- 
tracted in  the  name  of  the  latter  to  transport  gold  for  the 
plaintiff,  she  supposing  herself  to  be  dealing  with  the  former, 
it  was  held  she  could  recover  for  the  loss  of  her  gold  from 
the  former.^ 

§  109.  Actions  by  and  against  nominal  partners. —  As  the 

nominal  partner  has  no  real  interest  in  a  claim  belonging 
to  the  firm,  it  follows  that  the  actual  owners  recover  in 
their  own  names  and  should  not  join  the  nominal  partner. 
In  other  words,  the  theory  of  a  partnership  by  holding  out 
is  one  of  liabilities  and  not  of  rights.  In  bringing  an  action 
against  the  apparent  partners,  they  are  sued  as  if  actual 
members  of  the  firm.  The  plaintiff  generally  does  not  know 
whether  they  are  really  such  or  not.  The  issue  is,  are  they 
such  towards  him?  Hence  it  is  not  necessary  to  plead  specially 
that  there  is  an  estoppel  or  holding  out,  but  the  plaintiff 
can  sue  the  defendants  as  partners  and  prove  they  are  such 
by  estoppel,  and  it  is  not  a  variance.^ 

Hence,  of  course,  such  defendant  cannot  put  in  evidence 
the  written  contract  by  which  he  acted  to  show  he  was  not 

1  Adams  &  Co.  v.  Brown,  16  Oh.  trager,  60  Iowa,  374;  Campbell  v. 
St.  75.  See,  also,  S.  P.  Cushing  v.  Hood,  6  Mo.  211;  Eippey  v.  Evans, 
Smith,  43  Tex.  261 ;  Beall  v.  Lown-  22  id.  157 ;  Young  v.  Smith,  25  id.  311 ; 
des,  4  S.  Ca.  258.  Eimel  v.  Hayes,  83  id.  200;  Reber  v. 

2  Nichols  V.  James,  130  Mass.  589;  Columbus  Mach.  Mfg.  Co.  12  Oli.  St. 
Rice  V.  Barrett,  116  Mass.  312  ;  Fisher  175  ;  Reed  v.  Kremer,  111  Pa.  St.  482 ; 
V.  Bowles,  20  111.  396;  Brugman  v.  Hicks  u.  Cram,  17  Vt.449;  Sherman 
McGuire,  32  Ark.    783;  Maxwell  v.  v.  Kreul,  42  Wis.  33,  40. 

Gibbs,  32  Iowa,  32;  Hancock  v.  Hin- 

125 


§  109.  NATURE  AND  FORMATION. 

a  partner;  ^  certainly  unless  he  also  show  plaintiff   knew 
of  it.  2 

A  creditor  cannot  hold  both  a  retired  partner,  who  is  liable 
by  holding  out,  and  an  incoming  partner  on  a  contract  with 
the  new  firm.  If  the  new  firm  retained  the  old  name  and  he 
had  no  notice  of  dissolution,  he  can  hold  the  old  partners  or 
the  new,  but  not  both;  he  must  elect. ^ 

1  Rimel  v.  Hayes,  83  Mo.  200.  credit  of  the  actual  partners.    Rimel 

2 Plaintiff   can   testify    on    whose    u  Hayes,  83  Mo.  200. 

credit  he  did  the  work,  hut  not  that        3  Scarfe  v.   Jardine,  L.  B.  7  App. 

he  would  not  have  done  it  on  the    Gas.  345, 

126 


CHAPTER  VI. 

ILLEGAL   PARTNERSHIPS. 

§  110.  As  to  persons. —  A  partnership  may  be  illegal  by- 
reason  of  disqualification  of  certain  persons  to  engage  in  a 
traffic  permitted  to  the  public  generally.  Thus,  antago- 
nists in  time  of  war  cannot  become  partners;  that  is,  an 
alien  enemy  cannot  form  a  partnership  with  a  citizen,^  un- 
less domiciled  here;^  nor  a  subject  of  this  country,  residing 
in  a  country  at  w^ar  with  this,  even  bring  an  action,  for  the 
fruits  of  the  action  might  be  remitted  and  so  furnish  re- 
sources against  this  country;  ^  nor  a  neutral  in  such  country, 
for  the  same  reason.*  So,  if  a  sheriff  is  forbidden  to  buy 
county  scrip,  he  cannot  do  it  indirectly  by  forming  a  part- 
nership, and  the  partnership  is  illegal.^ 

Where  a  statute  forbids  a  lawyer  or  doctor,  not  licensed,  to  prac- 
tice, the  partnership  between  him  and  a  licensed  practitioner  is 
not  illegal,  if  the  former's  share  of  the  profits  is  not  in  considera- 
tion of  his  practicing.' 

And  a  partnership  between  a  lawyer  and  clerk,  or  physician  and 
apothecary,  is  presumably  legal  and  can  recover  for  services;  for 
non  constat  that  the  disqualified  member  will  try  cases  or  prescribe.' 

1  Evans  v.  Richardson,  3  Mer.  469.  B.  434.  But  see  Dunne  v.  O'Reilly, 
And  see  Brandon  v.  Nesbitt,  6  T.  R.  11  Up.  Can.  C.  P.  404,  of  Attorney 
23;  McAdams  v.  Hawes,  9  Bush,  15.  and  Clerk.     But  see  Candler  v.  Can- 

2  Per  RooKE,  J.,  in  McConnell  v.  dier.  Jac.  225;  6  Madd.  141,  of  an  or- 
Hector,  3  B.  &  P.  113.  dinary    partnership,    not  excluding 

3  McConnell  v.  Hector,  supra.  the  disqualified  person  from  practic- 
*  O'Mealey  v.  Wilson,  1  Camp.  482;    Ing.     Even    receiving    part    of    the 

Albretcht  v.  Sussmann,  2  Ves.  &  B.  profits  as  salary  was  called  illegal, 

323.     See  §  582.  as  an  evasion  of    the    statutes,    in 

5  Read  v.  Smith,  60  Tex.  379.  Tench  v.   Roberts,  6  Madd.  145;  Re 

6  Scott  V.  Miller,  H.  V.  Johns.  220.  Jackson,  1  B.  &  C.  270;  Ee  Clark,  3 
T  Turner  v.  Reynell,  14  C.  B.  N.  S.  D.  &  R.  260 ;  Hopkinson  v.  Smith,  1 

328;  Harland  v.  Lilienthal,  53  N.  Y.     Bing.  13;   7  Moo.  243.     In  the   last 
438;  Swan  v.  Scott,  23  Up.  Can.  Q.     three  cases  the  clerk  practiced;  but 

127 


§  112.  NATURE  AND  FOLIATION. 

§  11 1. ill  pulilic  office. —  An  occupation  may  be  legal 

when  carried  on  by  an  individual,  but  illegal  for  a  partner- 
ship on  grounds  of  public  policy;  as  where  the.  duty  is  a 
personal  one. 

Thus,  there  can  be  no  partnership  in  a  public  oflBce.  As  in  the 
office  of  sheriff,'  or  of  a  district  attoruej'';^  nor  in  the  office  of  ad- 
ministrator or  executor,  for  he  must  retain  exclusive  control  over 
the  assets,  and  such  a  contract  invites  misappropriation  and  abuse.' 
If  two  executors  traffic  in  the  estate  for  joint  benefit,  no  accounting 
v^ill  be  granted  between  them; ^  nor  in  the  profits  of  a  licensed 
Indian  trader.^  Attorneys  at  law  are  not  officers,  and  a  partner- 
ship betweeu  them  is  legal. ^  Tlie  law  that  one  sutler  shall  be  ap- 
pointed for  each  regiment,  who  shall  be  the  sole  sutler  and  shall 
not  farm  out  or  underlet  his  privileges,  was  held  not  to  prevent 
his  taking  a  partner,  the  object  being  to  provide  a  sole  responsi- 
bility.' Nor  does  a  statute  forbidding  a  contractor  with  the  gov- 
ernment assigning  his  claim,  prevent  a  partnership,  for  there  is  no 
claim  then  to  assign;  nor  the  forbidding  of  a  transfer  of  a  contract, 
for  the  object  of  this  is  to  protect  the  government  from  being 
harassed  by  multiplying  those  with  whom  it  deals,  and  a  memoran- 
dum of  division  between  the  partners  on  dissolution  does  not  vio- 
late this  provision.* 

§112.  As  to  occupation. —  A  partnership  maybe  illegal 
by  reason  of  being  formed  to  carry  on  an  unlawful  occupa- 
tion. As  for  sharing  in  the  proceeds  of  acts  which  are  pun- 
ishable as  crimes  or  misdemeanors,  as  a  partnership  of 
smugglers  or  highway  robbers;  or  one  forbidden  by  good 
morals,  whether  there  is  or  is  not  a  statute  making  it  penal, 

liarl  he  not  done  so  the  rule  of  Cox  u,        l  Jones  v.   Perchard,    2  Esp.   507; 

Hickman   would  have  required  the  Canfield  v.  Hard,  6  Conn.  180. 
decision  to  be  the  other  way,  because        2  gee  Gaston  v.  Drake,  1  Nev.  175. 
not  a  partnership.     That  a  lawyer        3  Forsyth  v.  Woods,  11  Wall.  484; 

may  be  partner  with  his  client,  and  Seely  v.  Beck,  43  Mo.  143. 
that  the  firm   is  formed  to  furnish        ^Bowen  v.   Richardson,  133  Mass. 

iron  to  a  railway  company,  of  which  293. 

the  lawyer  is  director,  will  not  ex-        5  Gould  v.  Kendall,  15  Nebr.  549. 
cuse  an  accounting  of  profits  between        6  Warner  v.  Gtiswold,  8  Wend.  665. 
the  partners,  see  Cameron  v,  Bick-        ■?  Wolcott  v.  Gibson,  51  111.  69. 
ford,  11  Ont.  App.  52.  8  Hobbs  v.  McLean,  117  U.  S.  567. 

128 


ILLEGAL  PARTNERSHIPS.  §  113. 

as  a  partnership  in  a  gambling  establishment.^  So  of  a 
partnership  to  speculate  on  margins  or  in  futures;^  or  a 
partnership  to  derive  a  profit  from  acts  which  are  against 
public  policy;  thus  a  combination  among  manufacturers  or 
dealers  to  regulate  prices  and  stifle  competition; '  or  an  agree- 
ment to  corner  a  stock.*  But  if  the  effect  of  the  combina- 
tion is  not  to  prevent  a  healthy  competition,  the  objection 
to  it  does  not  exist.  ^ 

§  113.  Bidders  on  public  contracts. —  For  a  similar  reason 
a  partnership  between  bidders  on  a  public  contract,  if  for 
the  purpose  of  preventing  competition,  is  illegal.^  But  not 
if  the  purpose  of  the  partnership  is  to  do  the  work,  where  its 
object  and  necessary  tendency  is  not  to  raise  the  price. ^ 

A  partnership  to  buj'  land  at  a  tax  sale  has  been  held  contrary 
to  public  policy;  not  that  a  partnership  cannot  buy,  but  where  the 
formation  of  the  partnership  is  speculation  at  such  sales.*  A  part- 
nership to  buy  lands  at  a  public  sale  by  the  United  States,  unlike 
a  corubination  to  bid  at  execution  sales,  is  not  illegal  Avhen  not 
amounting  to  an  agreement  not  to  bid  against  each  other.*  A  part- 
nership to  furnish  recruits  to  the  government  was  held  legal,  though 
the  articles  provided  that  the  partners  should  not  come  into  com- 
petition or  furnish  recruits  below  a  fixed  price,  unless  there  is  proof 
that  it  is  part  of  a  conspiracy  to  control  prices  or  create  a 
monopoly.*" 

In  Powell  V.  Maguire,  43  Cal.  11,  it  was  held  that  a  partnership 
formed  to  manage  a  ferry  franchise,  to  be  obtained  from  the  legis- 

iBoggess  V.   Lilly,    18  Tex.    200;  Coal  Co.    68  Pa.    St.    173;  Craft. «. 

Watson  V.   Fletcher,  7  Gratt.  1.     Or  McConoughy,  79  III.  346. 

lottery.     Watson  v.  Murray,  23  N.  J.  4  Sampson  v.  Shaw,  101  Mass.  145. 

Eq.  257;  Sykeg  v.   Beadon,  L.  R.  11  sPairbank  v.  Newton,  50  Wis.  628; 

Ch.  D.  170.  Fairbank  v.  Leary,  40  id.  637. 

2  Faikney   v.    Reynous,     4     Burr.  6  King  v.   Winants,  71  N.  Ca.  469; 

2069;  Petrie  v.  Hanway,  3  T.  R.  418;  Hunt  v.  Pfeiffer,  108  lud.  197. 

Patterson's  Appeal  (Supreme  Ct.  Pa.  7  Breslin  v.  Brown,  24  Oh.  St.  565. 

1883),  13  Weekly  Notes  of  Cas.  154;  But  see  Woodvvorth  v.  Bennett,  43 

Wann   v.   Kelly,   5  Fed.    Rep.    584;  N.  Y.  273. 

Tenney  v.  Foote,  95  111.  99;  Williams  8  Dudley  v.  Little,  2  Oh.  St.  504. 

V.  Connor,  14  S.  Ca.  621.  9  Piatt  v.  Oliver,  2  McLean,  207. 

8  Salt  Co.   V.  Gutlirie,   35  Oh.  St.  lo  Marsh  v.  Russell,    66  N.  Y.  288 

666 ;  Morris  Run  Coal  Co.  v.  Barclay  (rev.  2  Lans.  340). 
Vol.  1  —  9                            129 


§  114.  NATURE  AND  FORMATION. 

lature  b}'  one  partner,  was  void  on  the  ground  that  the  names  of 
actual  grantees  should  be  known  to  legislature,  since  a  contrary  rule 
might  lead  powerful  combinations  to  procure  vicious  legislation  in 
the  name  of  the  least  obnoxious  of  the  parties. 

§  114.  Contracts  Toitl  l)y  law;  war. —  So,  where  a  class  of 
contracts  is  made  void  by  law,  a  partnership  for  such  traffic 
is  void.  Such  are  in  many  states  partnerships  to  traffic  in 
intoxicating  liquors;  ^  or  between  a  bidder  for  a  city  contract 
and  another  person,  where  the  city  ordinance  required  all 
persons  interested  to  be  named  and  foi-bade  secret  interests.- 
The  most  numerous  class  of  illegal  partnerships  are  those 
between  citizens  of  belligerent  powers  or  for  trading  in  times 
of  war  within  the  lines  of  military  occupation,  or  with  the 
enemy  or  in  the  enemy's  commodities;^  as  trafficking  in 
Confederate  money.*  In  such  cases  the  property  established 
in  the  enemy's  country,  or  used  for  such  illegal  traffic,  is 
subject  to  seizure  and  condemnation.*  So  of  a  partnership 
in  a  voyage  between  ports  interdicted  by  the  government;^ 
or  a  partnership  to  trade  with  Indians; '^  or  in  violation  of 
the  navigation  laws.^ 

In  Decker  v.  Ruckraan,  28  N.  J.  Eq.  614,  a  partnership  was 
formed  in  New  Jersey  to  plant  oysters  in  Virginia,  where  it  was 
illegal  for  non-residents  so  to  do;  but  the  question  of  whether  the 
illegality  would  be  recognized  in  New  Jersey  was  not  passed  upon. 

In  Harvey  v.  Varney,  98  Mass.  118,  the  firm  of  H.  &  V.  was 
formed  in  part  for  the  purpose  of  transferring  to  it  the  property 
of  a  former  firm  of  A.  &  B.,  in  order  to  hinder  the  creditors  of  the 

1  Warren  v.  Chapman,  105  Mass.  Coop.  Ass'n,  p.  568,  not  elsewhere 
87;  McGunn  v.  Hanlin,  29  Mich.  476;    reported. 

Tucker  v.  Adams,  63  N.  H.  3G1.  ^  Stewart  v.  Mcintosh,  4  Har.  &  J. 

2  Kelly  V.  Devlin,  58  How.  Pr.  487.  233. 

3  Suell  V.  Dvvight,  120  Mass.  9 ;  Dun-  '  Gould  v.  Kendall,  15  Neb.  549. 
ham  V.  Presby,  120  id.  285;  Lewis  v.  8  Sharp  v.  Taylor,  2  Phil.  Ch.  801. 
Alexander,  51  Tex.  578.  In  Durant  v.   Rhener,  26  Minn.  363, 

<  Anderson  v.  Whitlock,  2  Bush,  it  was  even  held  that  partnership 
398;  Pfeuffer  v.  Maltby, 54 Tex.  454.     formed  on  Sunday   was  void;    and 

5  The  Cheshire,  3  Wall.  231;  Prize  contra  if  formed  subsequently  in 
Cases,  2  Black,  635 ;  U.  S.  v.  Hallock,  pursuance  of  an  agx-eement  made  ort 
U.  S.  Supreme  Ct.    Book  17,  Lawy.     Sunday. 

130 


ILLEGAL  PARTNERSHIPS.  ■   §  116. 

latter,  and  this  ngreemeut  was  held  valid  between  the  partners, 
though  it  woukl  be  voidable  as  to  creditors. 

That  a  partner  is  to  receive  interest  on  his  capital  in  excess  of  the 
per  cent,  allowed  by  the  usury  laws  is  not  illegal  or  usurious.  It 
is  not  a  case  of  the  loan  of  money.* 

§  115.  Illegal  ventures  of  a  legal  partnership. —  A  part- 
nership may  be  legal  and  yet  some  of  its  adventures,  or  part 
of  the  receipts  derived  by  it,  or  by  some  of  the  partners,  be 
illegal.  As  where  the  business  of  the  firm  is  to  act  as  agent 
for  others,  and  the  partnership  receives  a  bribe  or  commis- 
sion from  the  parties  with  whom  it  or  he  transacts  the 
principal's  business;^  or  from  some  other  illegal  source, 
as  where  an  association  for  holding  horse  fairs  derives  part 
of  its  profits  from  selling  pools,'  or  a  firm  doing  a  legal 
business  in  war  times  engages  in  forbidden  adventures  in 
the  enemy's  country.* 

In  Whitcher  v.  More}'',  39  Yt.  459,  a  deposition  was  objected  to 
because  the  law  partner  of  the  master  in  chancery  who  took  it 
acted  as  attorney  for  one  of  the  parties  in  taking  the  deposition; 
but  the  court  overruled  the  objection  on  the  ground  that  it  would 
not  presume  that  the  partnership  extended  to  sharing  each  other's 
fees  in  the  matter. 

If  a  statute  makes  illegal  a  business  which  had  theretofore  been 
legal,  but  the  business  is  continued  nevertheless,  this  will  not  pre- 
vent an  accounting  between  the  partners  for  the  time  during  which 
it  was  legal.^ 

§  1 1 6.  Title  to  partnership  assets. —  The  title  and  prop- 
erty rights  of  the  partnership  in  its  chattels  is  not  in  resist- 
ing third  persons  affected  by  the  fact  that  the  partnership 
business  is  illegal;  hence,  if  the  sheriff  levy  upon  the  inter- 
est of  one  partner  in  a  stock  of  liquors,  and  left  it  in  the 
hands  of  one  partner  as  receiptor,  and  afterwards  brings  re- 

iCase  V.  Fish,  58  Wis.  56,  105-7;  <  See  §  121. 

Cunninghatn  v.  Green,  23  Ohio  St.  SBennet  v.  Woolfolk,  15  Ga.   213. 

296.  As  to  partnerships  carried  on  under 

2 Todd  V.  Rafferty,  SO  N.  J.  Eq.  254;  an  illegal  name,  as  where  a  statute 

Northrup  V.  Phillips,  99  111.  449.  forbids  the  use  of  the  collective  ex- 

»  WillBon  V.  Owen,  30  Mich.  474.  pression,  "  &  Co.,"  see  §  198. 

131 


§  118.  NATURE  AND  FORMATION. 

plevin,  the  partners  can  set  up  the  title  of  the  partnership 
as  a  defense.^ 

So,  where  a  gambhng  firm  bought  and  used  a  house  for  gaming 
purposes,  the  surviving  partner  cannot  impeach  tlie  title  of  his 
partner's  grantor  on  that  ground;  '^  but  in  McPherson  v.  Pemberton, 
1  Jones'  L.  378,  it  was  held  that  persons  who  formed  a  partnership 
in  order  to  hinder  the  creditors  of  one  of  them  cannot  jointly 
maintain  trespass  q.  c.  f.  against  one  who  seized  their  goods.' 

Third  persons'  rights  against  the  illegal  firm  will  be  protected 
where  they  are  not  particeps  criminis.  Thus,  where  a  clergyman 
is  a  secret  partner,  though  prohibited  by  statute  from  trading,  he  is 
liable  to  become  a  bankrupt  in  respect  to  the  partnership  con- 
cerns.* 

§  117.  Presumption  against  illegality. —  Illegality  will 
not  be  presumed;  thus,  a  partnership  to  buy  one  hundred 
bales  of  cotton  futures  will  not  be  presumed  to  be  a  gam- 
ing contract.®  And  where  a  master  in  chancery  takes  a  dep- 
osition, his  law  partner  acting  as  attorney  for  one  of  the 
parties  in  taking  it,  the  deposition  will  not  be  excluded  un- 
less it  appears  that  the  partnership  extended  to  sharing  each 
other's  fees  in  the  matter,  which  will  not  be  presumed.^ 

§  1 1 8.  J  udicial  accounting  of  illegal  partnership. —  Owing 
to  the  difference  between  the  authorities  as  to  interfering 
between  law-breakers  to  compel  payment  when  no  account- 
ing is  necessary,  and  in  order  to  define  the  boundaries  of  the 
disputed  territory,  this  subject  will  be  treated  in  the  follow- 
ing order: 

I.  Accounting  of  the  affairs  of  an  illegal  partnership. 
This  is  not  granted  by  the  courts. 

II.  Accounting  of  legal  investments  of  the  proceeds  of  a 

1  Tucker  v.  Adams,  63  N.  H.  361.        sense  of  invalidity  or  failure  of  title. 

2  Watson  V.  Fletcher,  7  Gratt.  1.         Kinsman  v.  Parkhurst,  18  How.  289. 
8  In    case    of    the    illegality  of    a        <  Meymot's  Case,  1  Atk.  198,  199. 

patent  in  which  a  firm  is  formed  to  *  Williams    v.   Connor,    14  S.    Ca. 

deal,  the  patentee  not  being  the  orig-  631. 

inal  and  first  inventor,  an  account-  6  Whitcher  v.  Morey,  39  Vt.    459. 

ing  between  the  partners  may  be  had ;  And  see  Fan-bank  v.  Leary,  40  Wis. 

in  such  a  case  the  term  illegality  is  637;  and   Cameron    v.   Bickford,   11 

out  of  place,    because  used   in   the  Ont.  App.  53. 

132 


ILLEGAL  PARTNERSHIPS.  §119. 

past  and  settled  illegal  partnership,  the  origin  of  the  fund 
being  foreign  to  the  controversy.     This  is  granted. 

III.  Compelling  settlement  of  balances  when  the  parties 
themselves  have  stated  their  own  accountSj  and  nothing  re- 
mains but  to  pay  over.     This  is  disputed. 

I. 

§  1 1  0.  Refused  between  wrong-doers. —  A  bill  for  an  ac- 
counting and  settlement  of  the  partnership  transactions  of 
an  illegal  partnership,  or  of  the  legal  gains  of  a  legal  part- 
nership, will  not  be  sustained  either  for  the  purpose  of  ob- 
taining a  division  of  profits  or  contribution  for  losses '  and 
expenses,  for  the  taking  of  the  account  involves  a  dealing 
with,  and  hence  a  recognition  of,  the  illegal  acts,  but  the 
court  will  dismiss  the  bill  and  leave  the  parties  where  it 
finds  them. 

The  traditional  case  of  the  bill  for  an  accounting  between 
twohigliwaymen,  whether  legendary  or  not,  is  far  from  un- 
instructive,  since  it  shows  by  a  reductio  adabsurdum  that  an 
accounting  of  illegal  gains  cannot  be  had.  I  copy  in  the 
notes  the  report  from  Pothier,  omitting  a  few  concluding 
biographical  lines  on  the  counsel.  The  case  is  also  given  in 
Lindley  on  Partnership  and  Pollock  on  Contracts  by  G.  W. 
Wald.' 

1  Everet  v.  'Williams,  3  Pothier  on  in  the  said  business  with  good  suo- 
Obl.  3,  note,  taken  from  Europ.  Mag.  cess,  on  Hounslow  Heath,  where  they 
1787,  vol.  2,  p.  360.  The  bill  stated  dealt  with  a  gentleman  for  a  gold 
that  tlie  piaiotifT  was  skilled  in  deal-  watch,  and  afterwards  the  said 
ihg  in  several  commodities,  such  as  Joseph  Williams  told  your  orator 
plate  rings,  watches,  etc. ;  that  the  that  Finchley,  in  the  county  of  Mid- 
defendant  applied  to  him  to  become  dlesex,  was  a  good  and  convenient 
a  partner;  that  they  entered  into  place  to  deal  in,  and  that  commodities 
partnership,  and  it  was  agreed  that  were  very  plenty  at  Finchley  afore- 
they  should  equally  provide  all  sorts  said,  and  it  would  be  almost  all  clear 
of  necessaries,  such  as  horses,  sad-  gain  to  them;  that  they  went  ac- 
dles,  bridles,  and  equally  bear  all  ex-  cordingly,  and  dealt  with  several 
penses  on  the  roads  and  at  inns,  gentlemen  for  divers  watches,  rings, 
taverns,  ale-houses,  or  at  markets  or  swords,  canes,  hats,  cloaks,  horses, 
fairs.  "  And  your  orator  and  the  said  bridles,  saddles  and  other  things;  that 
Joseph  Williams  proceeded    jointly  about  a  month  afterwards  the  said 

133 


§119. 


NATURE  AND  FORMATION. 


This  was  held  of  a  partnership  in  a  lottery  or  a  gambling 
business;'  although  legal  in  the  state  where  the  contracts  were 
made,  but  a  misdemeanor  by  the  lex  fori?  So  of  a  partnership  to 
corner  a  stock;  it  is  a  conspiracy  rather  than  a  contract;^  or  to 
stifle  competition,  as  a  combination  among  dealers  in  a  commodity,* 
or  among  bidders  for  a  public  contract;^  or  to  trade  in  the  insur- 
rectionary states  after  intercourse  has  been  forbidden;  or  in  places 
interdicted  by  congress." 

The  partner  who  has  provided  the  funds  can,  however,  recover 
back  any  unexpended  balance  where  the  recovery  is  equivalent  to 
a  revocation,  but  not  if  he  advanced  the  whole  fund  on  terms  of 
returning  the  balance.'' 

So  if  a  tax  collector,  prohibited  by  statute  from  investing  in 
county  scrip,  forms  a  secret  partnership  in  order  to  obtain  profits 
thereby,  indirectly,  an  accounting  will  not  be  enforced.'  So  where 
the  state  engineer  formed  a  partnership  with  W.  and  B.  to  bid  on 
a  state  contract  in  the  name  of  W.,  which  was  illegal,  and  they 


Joseph  Williams  informed  your 
orator  that  there  was  a  gentlemen  at 
BlackheatU  who  had  a  good  horse, 
saddle,  bridle,  watch,  sword,  cane 
and  other  things  to  dispose  of,  which 
he  believed  might  be  liad  for  little  or 
no  money;  and  they  accordingly 
wen.t  and  met  with  the  said  gentle- 
man, and  after  some  small  discourse 
they  dealt  for  tlie  said  horse,  etc, ; 
that  your  orator  and  the  said  Joseph 
Williams  continued  their  joint  deal- 
ing together  until  Michaelmas,  and 
dealt  togetlier  in  several  places,  viz., 
at  Bagshot  in  Surry,  Salisbury  in 
Wiltshire,  Hampstead  in  Middlesex, 
and  elsewhere,  to  the  amount  of 
£2,000  and  upwards."  The  rest  of 
the  bill  is  in  the  ordinary  form  for 
a  partnership  account.  3d  Octo- 
ber, 1725,  on  the  motion  of  Sargeant 
Ginller,  the  bill  referred  for  scandal 
and  impertinence.  29th  November. 
Report  of  the  bill  as  scandalous  and 
impertinent  confirmed;  and  order 
to  attach  White    and  Wreathcock, 


the  solicitors.  6th  December,  the 
solicitors  brought  into  court  and 
fined  £30  each;  and  ordered  that 
Jonathan  Collins,  Esq.,  the  counsel 
who  signed  the  bill,  should  pay  the 
costs.  The  plaintiff  was  executed  at 
Tyburn  in  1730,  the  defendant  at 
Maidstone  in  1735.  Pothier  regards 
the  case  as  a  tradition,  as  does  also 
the  vice-chancellor  in  Ashhurst  v. 
Mason,  L.  R.  20  Eq.  225,  230. 

1  Watson  V.  Murray,  23  N.  J.  Eq. 
257 ;  Watson  v.  Fletcher,  7  Gratt.  1. 
And  per  Jessel.  M.  R.,  in  Sykes  v. 
Beadon,  11  Ch.  D.  170,  196. 

2  Watson  V.  Murray,  supra. 
'Sampson  v.  Shaw,  101  Mass.  145. 

4  Craft  V.  McConoughy,  79  111.  346; 
Fairbank  v.  Leary,  40  Wis.  C37. 

5  King  V.  Winants,  71  N.  Ca.  469. 
eSuell    V.    Dwight,    120    Mass.    9; 

Dunham  v.  Presby,  120  Mass,  2S5; 
Stewart  v.  Mcintosh,  4  Har.  &  J. 
233;  Lane  v.  Thomas,  37  Tex.  157. 

^  Sampson  v.  Shaw,  supra. 

8  Read  v.  Smith,  60  Tex.  379. 


134 


ILLEGAL  PARTNERSHIPS.  §  120. 

obtained  the  con  tract,  and  sold  out  their  bid  at  a  profit  before  the 
contract  was  awarded,  and  the  money  came  into  W.'s  hands,  B. 
cannot  compel  W.  to  pay  him  his  share;  the  firm  itself  being 
illegal,  none  of  the  parties  can  obtain  any  rights  under  it.*  So  a 
suit  for  dissolution  and  accounting  of  a  partnership  made  on  Sun- 
day was  not  allowed,  because  the  partnership  was  void.*  •  So  of  a 
partnership  to  trade  with  Indians,  which  is  a  violation  of  the  stat- 
utes of  the  United  States;  a  partner  cannot  claim  damages  or  com- 
pensation for  a  breach  of  the  articles.^  Where  a  Scotchman  and 
an  American  made  a  contract  to  export  goods  from  England  to 
America  in  war  time,  provided  peace  was  not  declared,  though  the 
goods  did  not  sail  till  after  peace  was  made,  the  court  refused  to 
interfere  between  the  partners  on  the  ground  of  illegality.* 

§  120.  same. —  Where,  on  grounds  of  public  policy, 

there  can  be  no  partnership,  as  in  the  duties  of  certain  pub- 
lic offices,  or  in  the  trusts  of  an  executorship  or  an  admin- 
istration contemplating  a  misuse  of  funds  or  breach  of 
trust,  no  accounting  of  the  joint  transaction  would  be  de- 
creed. 

In  Bowen  v.  Richardson,  133  Mass.  293,  two  executors  united  in 
misusing  the  trust  funds  by  speculating  in  real  estate  for  their  own 
benefit  in  the  name  of  one  of  them;  the  beneficiaries  not  being  de- 
barred by  acquiescence  or  otherwise  from  claiming  the  advantage 
thereof,  the  other's  bill  for  an  account  and  share  of  profits  was  not 
sustained.* 

But  where  a  possible  ineligibility  of  a  partner  arises  from  his 
contract  relations  with  third  persons,  but  no  abuse  of  trust  or 
fraud  appears,  it  seems  that  an  accounting  will  not  be  refused. 

Thus,  in  Cameron  v.  Bickford,  11  Out.  App.  52,  C.  and  B.  agreed 
together  jointly  to  furnish  iron  for  a  railway  and  carry  out  a  con- 
tract to  construct  a  road.  The  fact  that  C.  had  been  the  legal  adviser 
for  the  company  and  was  one  of  the  directors  of  the  road  will  not 
excuse  B.  from  accounting. 

1  Woodworth  v.  Bennett,  43  N.  Y.  5  Woodworth  v.  Bennett,  43  N.  Y. 
273.  273,     of    a    partnership  in  a    state 

2  Durant  v.  Rhener,  26  Minn.   363.     contract  between  an  engineer  of  the 
■J  Gould  V.  Kendall,  15  Neb.  549.  state  and  a  contractor. 

■  Evans  V.  Richardson,  3  Mer.  469. 

135 


g  121.  NATURE  AND  FORMATION. 

§  121.  part  of  the  business  legal  and  part  not. — 

Where  part  of  the  business  is  legal  and  part  not,  the  court, 
in  an  action  to  wind  up,  may  take  charge  and  settle  that 
part  of  the  business  which  is  legal,  but  not  of  the  illegal  part. 

In  Dunham  v.  Presby,  120  Mass.  285,  P.,  of  the  firm  of  A.,  B.  & 
P.,  made  an  agreement  with  X.,  Y.  &  Z.  to  buy  cotton  in  localities 
beyond  the  lines  of  military  occupation,  which  agreement  his  part- 
ners ratified.  After  the  purchase  was  made,  and  while  the  cotton 
was  at  sea,  X.,  Y.  &  Z.  became  alarmed  for  its  safety  on  account  of 
news  of  the  presence  of  a  rebel  cruiser,  and  P.  thereupon  bought 
out  their  interests  for  $3,500.  P.  supposed  that  he  had  no  authority 
to  buy  for  his  partners,  and  that  he  was  buying  for  himself  The 
cotton  arrived  safely  and  realized  over  $17,000.  P.  accounted  with 
his  partners  for  his  original  share,  without  disclosing  his  purchase 
of  the  other  interests.  A  bill  by  the  other  partners  to  compel  P. 
to  account  for  such  gains  was  held  not  to  be  sustainable  because 
they  arose  from  an  illegal  trading. 

So,  where  one  of  the  partners  of  a  firm  which  acted  as  purchas- 
ing agents  bought  at  one  price  and  turned  in  the  property  to  the 
customers  at  a  higher  price,  equity  will  not  aid  the  copartner  in 
procuring  a  division  of  these  illegal  gains;  and  the  fact  that  the 
innocent  partner  may  be  liable  to  the  cheated  parties  is  no  reason 
for  allowing  the  accounting  in  anticipation  of  his  loss  and  before 
it  is  actually  sustained.' 

Where  part  of  a  business  consisted  in  keeping  a  gambling  house 
and  selling  liquors  illegally,  a  large  stock  of  which  is  on  hand,  an 
accounting  of  the  legal  part  was  granted."  And  if  the  business  of 
a  partnership  was  made  illegal  by  statute,  but  was  conducted  there- 
after, an  accounting  for  the  time  it  was  legal  may  be  obtained,  and 
a  precise  allegation  as  to  that  time  is  not  necessary,  for  the  defend- 
ants are  presumed  to  know.' 

But  if  the  two  classes  cannot  be  separated,  the  accounting  will 
be  refused.'* 

iTodd  V.   Rafferty,  30  N.   J.  Eq.  2  Anderson    v.    Powell,    44    Iowa, 

254 ;  Northrup  v.  Phillips,  99  111.  449.  20. 

A  dictum  in  Woodworth  v.  Bennett,  SBennet  v.  Woolfoik,  15  Ga.  213. 

43  N.  Y.   273,  seems  to  imply  that  ^Lane  v.    Thomas,    37    Tex.    157, 

an  accounting  has   been  carried  to  where  part  of  the  profits  were  based 

the  limit  of  including  illegal  gains  upon  traffic  in  Confederate  money. 
of  a  legal  partnership. 

136 


ILLEGAL  PARTNERSHIPS  §  124. 

§122.  Motives. —  Where  the  business  is  legal,  but  the 
motives  for  forming  the  partnership  are  in  fraud  of  the 
rights  of  others,  and  hence  voidable  as  to  them,  the  part- 
ners can  be  compelled  to  account  to  each  other.  As  v^^here 
two  persons  form  a  firm  for  the  purpose  of  hindering  the 
creditors  of  one  of  them,  this  fact  is  no  defense  to  a  bill  for 
settlement  of  the  concern.^ 

n. 

§  1 23.  Where  the  illegality  is  wholly  a  thing  of  the  past. — 

We  may  assume  another  proposition  as  being  law,  namely, 
where  the  proceeds  of  the  illegal  transactions  have  all  been 
gathered  in  and  divided ;  or  if  the  proportionate  ownership 
is  settled  without  division,  but  they  have  passed  from  the 
possession  of  one  partner  into  the  joint  fund  and  are  again 
invested  in  legal  enterprises,  so  that  the  possession  of  any 
one  partner  in  whose  hands  they  come  relates  back  to  a  new 
and  legal  starting  point,  the  original  illegal  origin  of  the 
fund  will  not  relieve  him  from  liability  to  account,  being 
entirely  outside  of  the  field  of  litigation. 

III. 

§  124.  When  not  wholly  past. —  But  a  much  disputed  ter- 
ritory lies  intermediate  between  these  classes  of  cases;  that 
is,  between  those,  on  the  one  hand,  where  the  court  is  asked 
to  take  an  accounting  of  illegal  transactions,  not  merely  to 
enforce  the  final  claims,  but  to  ascertain  what  they  are,  and, 
on  the  other  hand,  those  where  there  has  been  a  complete 
settlement  of  rights  and  extinguishment  of  all  claims  aris- 
ing from  the  illegal  enterprise  and  a  new  departure. 

Where  the  partners  have  themselves  come  to  an  account- 
ing of  all  the   illegal  transactions,  and  have   ascertained 

1  Harvey  V.  Varney,  98  Mass.  118;    maintain  trespass  q.   c.   f.    against 
Brigham  v.  Smith,  3  E.  &  A.   (Up.     one  wlio  seized  their  goods. 
Can.)    46.      Contra,    McPherson    v.        2See  Anderson  u.Whitlock,  2  Bush, 
Pemberton,  1  Jones,  L.  378,  holding    398,  404-5 ;  and  see  the  rest  of  this 
that  such  partners  cannot    jointly    chapter. 

137 


§  125.  NATURE  AND  FORMATION. 

the  balances  and  settled  the  concerns  up  to  the  point  of 
paying  differences  or  dividing  property,  and  the  court  is  ap- 
plied to  to  compel  this  final  step,  the  authorities  disagree, 
some  holding  that  the  assistance  of  a  court  is  recognizing 
and  enforcing  a  violation  of  law,  and  refusing  to  inter- 
fere in  any  way;  while  others  hold  that  as  the  illegality 
only  incidentally  appears  in  the  cause,  public  safety  does 
not  require  the  court,  after  the  illegal  transaction  is  settled 
and  closed  and  the  title  to  proceeds  arising  from  it  is  alone 
asserted,  to  permit  one  party  to  perpetrate  the  further 
wrong  of  appropriating  all.  It  may  be  noticed  here,  that, 
while  the  latter  class  of  cases  do  not  seem  to  divide  upon 
the  once  valid  distinction  between  what  is  malum  in  se  and 
what  is  merely  malum  prohibitum,  no  case  calling  for 
decision  has  arisen  where  the  fund  arose  from  acts  consti- 
tuting a  felony,  or  graver  crime  than  gambling  transactions 
or  dealing  with  a  public  enemy. 

§  125.  Brooks  t.  Martiu. —  The  leading  and  much-criti- 
cised case  granting  relief  in  this  class  of  cases  is  Brooks  v. 
Martin,  2  Wall.  70.  In  that  case  a  partnership  was  formed 
to  buy  up  soldiers'  claims  for  land  warrants,  which  was  con- 
trary to  an  act  of  congress.  The  plaintiff  contributed  all 
the  funds,  and  the  defendant  bought  up  land  warrants,  lo- 
cated the  lands  and  converted  the  warrants  into  lands,  and 
converted  part  of  the  lands  into  money  and  mortgages,  and 
had,  by  fraudulently  concealing  the  value  of  the  assets, 
bought  out  the  plaintiff's  interest  for  a  trifle,  and  this  suit 
was  to  compel  an  accounting  and  division. 

The  court  said  that,  although  in  such  a  partnership  a  suit 
by  one  partner  to  compel  the  other  to  contribute  an  agreed 
share  of  the  purchase  money  could  not  have  been  sustained, 
"  a  large  proportion  of  the  lands  so  located  had  also  been 
sold,  and  the  money  paid  for  some  of  it  and  notes  and  mort- 
gages given  for  the  remainder.  There  were  then  in  the 
hands  of  the  defendant,  lands,  money,  notes  and  mortgages, 
the  result  of  the  partnership  business,  the  original  capital  of 
which  the  plaintiff  had  advanced.  It  is  to  have  an  account 
of  these  funds  and  a  division  of  these  proceeds  that  the  bill 

133 


ILLEGAL  PARTNERSHIPS.  g  126. 

is  filed.  Dogs  it  lie  in  the  mouth  of  the  partner  who  has  by 
fraudulent  means  obtained  possession  and  control  of  these 
funds  to  refuse  to  do  equity  to  his  other  partners  because  of 
the  wrong  originally  done  or  intended  to  the  soldier?  It  is 
difficult  to  perceive  how  the  statute  enacted  for  the  benefit 
of  the  soldier  is  to  be  rendered  any  more  effective  by  leav- 
ing all  this  in  the  hands  of  Brooks,  instead  of  requiring  him 
to  execute  justice  between  himself  and  his  partner,  or  what 
rule  of  public  morals  will  be  weakened  by  compelling  him 
to  do  so.  The  title  to  the  lands  is  not  rendered  void  by  the 
statute.  It  interposes  no  obstacle  to  the  collection  of  the 
notes  and  mortgages.  The  transactions,  which  wore  illegal, 
have  become  accomplished  facts  and  cannot  be  aifected  by 
any  action  of  the  court  in  this  case." 

The  case  of  Brooks  v.  Martin  relied  upon  the  earlier  English 
case  of  Sharp  v.  Taylor,  2  Phil.  801,  where,  on  bill  filed  for  a  share 
of  freight  money  in  the  hands  of  one  partner,  earned  in  a  trade 
which  violated  the  navigation  laws,  Lord  Cotten"h^m  said:  "  Can 
one  of  two  partners  possess  himself  of  the  property  of  the  firm  and 
be  permitted  to  retain  it  if  he  can  show  that  in  realizing  it  some 
provision  in  some  act  of  parliament  has  been  violated?  The 
answer  is  that  the  transaction  alleged  to  have  been  illegal  is  com- 
pleted and  closed  and  will  not  be  in  any  manner  affected  by  what 
the  court  is  asked  to  do  between  the  parties." 

This  case,  however,  has  been  much  criticised  in  England.  Thus, 
in  Sykes  v.  Beadon,  11  Ch.  D.  170,  there  was  an  illegal  association 
in  the  nature  of  a  partnership  in  a  lottery.  An  action  was  brought 
against  its  trustees  for  breach  of  trust,  which  had  caused  a  loss  ot 
part  of  the  fund.  Jessel,  M.  R.,  says:  Lord  Cottenham's  reason- 
ing in  Sharp  v.  Taylor  is  inconclusive  and  unsatisfactory.  "  The 
notion  that  because  a  transaction  which  is  illegal  is  closed  that 
therefore  a  court  of  equity  is  to  interfere  in  dividing  the  proceeds 
of  the  illegal  transaction,  is  not  only  opposed  to  principle,  but  to 
authority,  in  the  well-known  case  of  highwaymen."  He  adds, 
however,  p.  197:  ''  It  does  not  follow  that  you  cannot  in  some 
cases  recover  money  paid  over  to  third  persons  in  pursuance  of  the 
contract." 

§  126.  Explanation  of  Brooks  v.  Martin. —  It  is  to  be  no- 
ticed of  Brooks  V.  Martin  that  the  statute  did  not  make  the 

139 


§  127.  NATURE  AND  FORMATION. 

title  to  the  lands  subsequently  acquired  void.  Also,  that  the 
suit  did  not  dispute  the  amount  of  money  received  for 
the  illegally  obtained  warrants,  but  required  an  accounting 
of  the  proceeds  of  the  lands  without  disputing  the  correct- 
ness of  the  consideration  paid  for  them,  much  as  if  the  lands 
had  been  purchased  by  new  advances  by  the  plaintiff  after 
full  settlement  of  the  prior  illegal  transactions  in  warrants. 
The  fact  that  the  controversy  was  over  reinvestments  of 
profits  into  other  forms  was  emphasized  by  the  court,  and 
this  fact  is  regarded  as  an  important  element  in  the  com- 
ments upon  it.^  And  the  cases  in  the  next  section  which  fol- 
low it  do  so  on  the  ground  that  the  controversy  could  be 
settled  without  reference  to  the  illegal  transaction,  the  court 
not  being  compelled  to  inquire  how  the  parties  got  the 
money  in  dispute. 

But  the  case  has  been  deemed  of  further  application  in 
so  far  as  it  sustains  Sharp  v.  Taylor,  2  Phil.  801,  supra,  in 
holding  that  after  the  close  of  an  illegal  transaction  the  part- 
ner who  is  in  possession  of  the  ascertained  profits  can  be 
compelled  to  divide  them.^ 

§127.  Cases  enforcing  payment  of  balances.  —  Here, 
again,  no  general  rule  can  be  devised  which  will  reconcile 
the  cases,  though  in  the  majority  of  these  cases  an  express 
promise  was  made.  Thus,  where  partners  were  concerned 
in  illegal  stock  jobbing  which  resulted  in  a  loss,  and  one  paid 
all  the  debt  and  took  security  from  the  other  for  his  share, 

1  Gould  V.  Kendall,  15  Neb.  549,  profits  of  a  joint  dealing  on  margin; 
and  Pfeuffer  v.  Maltby,  54  Tex.  Willson  v.  Owen,  30  Mich.  474, 
454.  where,  however,  the  association  was 

2  This  view  of  that  case  would  seem  for  holding  horse  fairs,  involving 
to  be  sustained  by  Pfeiffer  v.  Maltby,  selling  pools,  and  the  illegality  was 
38  Tex.  523,  a  caseof  tratficking  with  said  to  appear  incidentally  only, 
the  enemy  (but  Pfoufler  u  Maltby,  54  The  diflSculty  with  this  class  of 
id.  454,  puts  the  case  on  the  basis  of  cases  is  that  they  approach  the  con- 
reinvestment  of  profits,  under  Brooks  elusion  that  if  tiie  highwaymen  in 
V.  Martin).  Lewis  v,  Alexander,  51  Everet  v.  Williams  invested  their 
Tex.  578,  also  a  case  of  prohibited  profits  in  other  forms,  an  accounting 
traffic  during  the  war;  Attaway  v.  would  have  been  granted,  unless  we 
Third  Nat'l  B'k,  15  Mo.  App.  577;  distinguish  between  ma^awi  in  se  and 
Wann   v.   Kelly,    5    Fed.    Rep.    584,  malum  prohibitum. 

140 


ILLEGAL  PARTNERSHIPS.  §  127. 

Che  security  was  held  enforceable  as  a  new  contract  not  in- 
fected by  the  original  transaction.^ 

So  wliere  partners  in  dealing  faro  became  indebted  on  partner- 
ship account  and  one  paid  the  debt,  in  consideration  of  which  the 
other  gave  him  a  note  for  his  share  of  the  losses,  the  payee  was 
held  entitled  to  recover  on  the  note.* 

So  of  a  partnership  to  ship  merchandise  from  Mexico  to  Texas, 
with  a  view  to  obtain  cotton  during  the  war,  and  after  settlement 
one  partner  gave  the  others  notes  for  their  shares  of  the  proceeds, 
it  was  held  that  the  illegality  does  not  attach  to  the  notes  and  is  no 
defense  to  them.  The  court  in  this  case,  perhaps,  had  in  mind  the 
old  distinction  between  a  contract  which  is  malum  in  se  and  one 
which  is  merely  malum  'prohibitum^  for  they  say  that  a  contract 
may  be  illegal  without  it  being  immoral  or  illegal  to  adjust  profit 
and  loss.^ 

In  McGunn  v.  Hanlin,  29  Mich.  476,  articles  of  partnership  con- 
templated the  sale  of  liquors' as  part  of  the  business,  and  on  disso- 
lution liquors  were  among  the  stock;  the  retiring  partner  authorized 
his  copartner  to  pay  debts  incurred  in  their  purchase  and  charge 
him  the  price  of  them  in  the  settlement.  It  was  held  that  when 
sued  for  contribution  he  could  not  set  up  the  liquor  law  in  defense, 
for  that  only  goes  to  buyer  and  seller,  and  does  not  prevent  deal- 
ings being  included  within  grounds  of  estoppel  or  agency,  and  he 
cannot  repudiate  the  payment. 

So  in  Belcher  v.  Conner,  1  S.  Ca.  88,  a  partnership  to  buy  and  sell 
slaves.  The  constitution,  article  4,  section  34,  made  contracts  the 
consideration  of  which  is  the  purchase  of  slaves,  null.     A  demand 

J  Faikney  v.  Reynous,  4  Burr.  2069 ;  tinction    between    contracts    made 

Petrie    v.    Hanway,     3    T.    R.    418.  with  specific  reference  to  direct  aid 

Woodworth  v.  Bennett,  43  N.  Y.  273,  in  the  actual  prosecution  of  hostili- 

admits    the  irreconcilability  of  the  ties,  and   such  as  might  be  made  in 

cases.  the   ordinary  transaction   of  social 

2Boggess  V.  Lilly,  18  Tex.  200.  And  and  business  life,  though  tending  to 

see  Crescent  Ins.    Co.   v.  Baer  (Fla.  supply  the  wants  of  people  in  the 

1887),  1  So.  R.  318.  hostile  territory;    also  bet%veen  en- 

3  De  Leon  v.  Trevino,  49  Tex.  88.  forcing  an  illegal  partnership  and 
See,  also,  the  query  in  King  v.  Win-  adjusting  the  profit  and  loss  after  it 
ants,  71  N.  Ca.  469,  470;  and  in  has  been  closed  and  the  money 
Pfeuffer  v.  Maltby,  54  Tex.  454,  of  a  passed  into  other  forms.  See,  also, 
partnership  to  traffic  in  Confederate  AVatson  v.  Fletcher,  7  Gratt.  1 ;  Left- 
money  and  cotton,  where  tlie  dis-  wich  v.  Clinton,  4  Lans.  176. 

141 


§129. 


NATURE  AND  FORMATION. 


for  an  accounting  between  the  parties  was  sustained  on  the  theory 
that  the  liability  to  account  was  not  founded  on  a  contract  the 
consideration  of  which  was  the  purchase  of  slaves,  but  that  its  con- 
sideration was  the  mutual  covenants  and  promises  of  the  partners. 

§  128.  Cases  refusini? payment. —  Nevertheless  in  this  view 
of  Brooks  V.  Martin,  that  is  in  so  far  as  it  follows  the  case 
of  Sharp  v.  Taylor,  it  is  in  many  states  not  law,  and  the 
mere  fact  that  a  fraud  or  illegal  enterprise  is  completed  will 
not  entitle  the  parties  to  compel  a  division.^ 

§  129.  Neglect  to  register. —  Some  states  have  a  statute 
requiring  partnerships  to  record  in  some  designated  public 


iTodd  V.  Rafferty,  30  N.  J.  Eq, 
254;  Woodworth  v.  Bennett,  43  N, 
Y.  273,  where  the  fund  was  all  in  the 
hands  of  one  partner.  Stewart  v. 
Mcintosh,  4  Har.  &  J.  233,  where  the 
proceeds  of  an  illegal  voyage  were  in 
the  hands  of  a  third  person,  who  re- 
fused to  pay  it  over.  Patterson's 
Appeal  (Supr.  Ct.  Pa.  1883),  13  W.  N. 
Cas.  154,  whei-e  the  proceeds  of  a 
joint  deal  on  a  margin  were  in  the 
hands  of  one  of  parties,  and  an  ac- 
count had  been  stated,  the  balance 
due  acknowledged,  and  a  promise  to 
pay  made,  but  the  covirt  would  not 
enforce  it.  Hunt  v.  Pfeiffer,  108 
Ind.  197,  where  a  partnership  is 
formed  to  stifle  competition  in  bid- 
ding on  a  public  contract,  and  obtains 
the  contract,  and  some  of  the  part- 
ners exclude  another  from  its  bene- 
fits, no  action  by  him  for  a  share  of 
profits  will  lie.  Gould  v.  Kendall,  15 
Neb.  5-19,  where  it  was  said  that  in  so 
far  as  Brooks  v.  Martin  follows  Sharp 
V.  Taylor,  it  can  scarcely  be  consid- 
ered authority.  See,  also,  Dunham 
V.  Presby,  120  Mass.  285 ;  Northrup  v. 
Phillips,  99  111.  449.  There  are  other 
cases  upon  this  controversy  which 
do  not  involve  partnerships,  but  these 
I  have  not  space  to  comment  upon. 


In  Warren  v.  Chapman,  105  Mass, 
87,  where  a  firm  made  illegal  sales 
of  intoxicating  liquors ;  and  the 
buyer  executed  a  note  to  one  of  the 
partners  in  consideration  that  he 
would  pay  the  debt,  the  note  was 
held  void,  for  the  payee  was  an  orig- 
inal offender,  and  part  of  the  con- 
sideration of  the  note  was  his  own 
share  of  the  debt,  and  this  taints  the 
whole.  This  last  expression  would 
seem  to  imply  that  had  the  note  not 
included  the  payee's  share  of  the  debt 
it  would  not  have  been  illegal.  In 
Tenney  v.  Foote,  95  111.  99,  a  note 
made  to  a  firm,  part  of  the  consider- 
ation of  which  arose  on  contracts 
of  one  partner  without  the  other's 
knowledge,  for  a  commission  in  deal- 
ing in  options,  was  held  void.  In 
Forsyth  v.  Woods,  11  Wall.  484,  a 
partnership  in  conducting  the  ad- 
ministration of  an  estate  was  formed 
between  the  administrator  and  an- 
other, which  is  illegal ;  a  person  who 
went  on  the  administrator's  bond  at 
the  request  of  the  firm  had  to  pa)-, 
and  sued  the  firm  for  reimbursement, 
claiming  that  he  had  paid  a  partner- 
ship debt,  since  they  were  partners 
in  the  administration,  and  it  was 
held  that  he  could  not  recover. 


142 


ILLEGAL  PARTNERSHIPS.  §  129. 

office  the  individual  names  of  the  partners,  not  making  the 
partnership  illegal  for  non-compliance,  but  imposing,  gener- 
ally, a  disability  to  maintain  an  action  on  contracts  incase  of 
omission;  or  where  the  firm  is  defendant,  relieving  the  plaint- 
iff of  the  consequences  of  nonjoinder  of  a  partner  as  defend- 
ant. Such  statutes  have  existed  in  California,  Nevada,^  New 
Hampshire  and  Upper  Canada,  and  for  one  year  in  Ohio. 

Any  form  of  acknowledgment  will  satisfy  the  statute,  none  be- 
ing prescribed.''  Where  the  statute  in  terms  applies  only  to  trad- 
ing partnerships,  any  firm  which  buys  and  sells  comes  in  this 
category;  as  a  partnership  to  print  and  publish  a  newspaper.* 

The  statute  was  held  not  to  apply  to  an  action  by  the  partners 
as  individuals,  not  upon  a  partnership  contract,*  nor  to  actions  for 
torts  committed  against  the  property  of  the  firm;*  nor  to  actions 
not  growing  out  of  the  partnership  affairs,  as  where  the  sheriff, 
having  levied  upon  property  as  belonging  to  a  partner,  leaves  it  in 
the  hands  of  a  receiptor,  and  then  replevies  from  him  on  his  refusal 
to  deliver.* 

The  publication  must  be  before  the  action  is  begun  and  not 
merely  before  trial,  for  beginning  an  action  is  part  of  the  "  main- 
taining "  of  it.'  The  statute  is  only  matter  in  abatement,  and 
if  an  action  is  defeated  for  non-compliance,  a  new  action  lies 
after  the  statement  has  been  filed.*  The  statute  does  not  prevent 
one  to  whom  the  partnership  assigned  a  claim  suing  upon  it;  the 
assignee's  title  may  be  good  although  the  assignment  was  made  to 
evade  the  statute." 

1  Where  the  penalty  is  $1,000.  St.  though  of  little  value  as  compared 
1881,  ch.  65,  §§  27-29.  with  the  product,  it  would  be. 

2  Fabian  v.  Callahan,  56  Cal,  159.  ^McCord  v.  Seale,  56  Cal.  262. 

3  Pinkerton  v.  Ross,  33  Up.  Can.  Q.        5  Ralph  v.  Lockwood,  61  Cal.  155. 
B.  508,  the  court  saying,  p.  514,  that        6  Tucker  v.  Adams,  63  N.  H.  361. 
a  firm  making  bricks  on  its  own        ^  Byers  r.  Bourret,  64  Cal.  73. 
land  would  not  be  within  the  statute,        8  Sweeney  v.  Stanford,  67  Cal.  635. 
whereas    if    it   purchase    the    clay,        9  Cheney  v.  Newberry,  67  Cal.  126. 

143 


CHAPTEK  VII. 

PERSONS  COMPOSING  THE  FIRM. 

§  130.  Any  person  who  has  capacity  to  enter  into  con- 
tracts can  be  a  partner;  hence  this  branch  of  the  law  of 
partnership  involves  the  general  question  of  capacity  belong- 
ing- to  the  law  of  contracts,  except  as  somewhat  modified  in 
the  case  of  infants  and  married  women  when  seeking  to  dis- 
affirm. 

ALIENS. 

§131.  The  capacity  of  an  alien  to  be  a  partner  is  the  same 
as  his  capacity  to  form  any  other  contract.  Any  immunity 
from  liability  to  be  sued  enjoyed  by  the  accredited  and  rec- 
ognized minister  of  a  foreign  government  applies  to  him  as 
a  partner,  if  he  engages  in  trade.  ^  But  war  is  a  disqualifi- 
cation of  an  alien's  right  to  contract  if  he  is  a  citizen  of  one 
of  the  antagonists.^ 

LUNATICS. 

§  132.  As  the  contract  of  a  lunatic  with  a  person  who  is 
not  aware  of  his  infirmity,  if  executed,  binds  him,  and  if 
disaffirmed,  while  executory,  is  binding  to  the  extent  of  re- 
storing to  the  other  party  an  equivalent  for  vvhat  he  has 
parted  with,  it  follows  that  a  partnership  contract  with  a 
lunatic  is  valid  to  the  same  extent.  And  if  a  partner  be- 
comes a  lunatic  while  the  firm  is  in  operation,  it  is  merely 
a  cause  for  dissolution  in  a  proper  case  and  not  a  dissolution 
per  se;  and.  until  dissolved,  he  has  the  rights  and  liabil- 
ities of  a  partner.^ 

CORPORATION  AS  A  PARTNER, 

§133.  Generally  cannot  Ibe  a  partner.— A  corporation 
cannot  form  a  partnersliip  with  an  individual  or  with  an- 

IMagdalena    Steam    Nav.    Co.    v.        s.SeegllO. 
Martin,  2  E.  &  E.  94.  « See  §  581. 

144 


PERSONS  COMPOSING  THE  FIRM.  §  133. 

other  corporation.  This  results  not  from  any  principle  of 
partnership  law,  but  from  the  nature  of  a  corporation,  and, 
therefore,  if  the  corporation  is  invested  with  power  to  form 
such  a  relation  the  objection  is  removed.  A  corporation  can, 
in  general,  be  bound  only  by  the  acts  of  its  duly  elected  offi- 
cers or  agents;  hence,  as  a  partnership  implies  two  princi- 
pals, or  an  agent  who  is  not  appointed,  and  is  not,  at  least  in 
a. partnership  of  fixed  duration,  removable  at  will,  such  re- 
lation violates  this  rule  of  corporations.  So,  if  the  statute 
requires  a  corporation  to  make  periodical  statements  of  its 
condition  and  debts,  this  cannot  be  done  if  another  principal 
has  the  power  of  creating  them.  So,  if  the  statute  limits 
the  amount  of  the  indebtedness  which  a  corporation  may 
incur.  ^ 

In  Van  Keuren  v.  Trenton  Locomotive  &  Macb.  Mfg.  Co.  13  N. 
J.  Eq.  302,  where  a  corporation  and  the  plaintiff  formed  a  partner- 
ship, and  after  two  years  the  corporation  excluded  the  plaintiff  from 
the  business  and  took  the  property,  it  was  held  that  the  want  of 
corporate  power  was  no  defense  to  a  suit  for  an  accounting  and  in- 
junction, and  that  the  services  and  property  of  plaintiff  could  not 
be  thus  taken  away  from  him.  In  French  v.  Donohue,  29  Minn. 
Ill,  it  was  held  that  such  a  partnership  could  recover  on  obliga- 
tions made  to  the  firm,  and  tbe  debtor  could  not  repudiate  them; 
the  want  of  capacity  does  not  concern  him.  In  Bissell  v.  M.  S.  & 
N.  I.  R.  R.  Cos.  22  N.  Y.  258,  it  was  held  that  iilt7'a  vires  was  no- 
defense  in  an  action  by  an  injured  passenger  against  two  raih-oad 
corporations  which  bad  formed  a  partnership.  In  Gunn  v.  Central 
R.  R.  Co.  74  Ga.  509,  a  railroad  company  attempted  to  form  a  part- 
nership with  a  person  to  run  a  line  of  boats,  but  this  was  held  to 
be  ultra  vires^  and  hence  an  action  of  tort  would  not  lie  against  the 
corporation  for  acts  of  the  firm.* 

iWhitteuton  Mills  v.  Upton,  10  (N.  H.)  13  Am.  and  Eng.  R.  R.  Cas.  94; 
Gray,  583 ;  Hackett  v.  Multnomah  Gunn  v.  Central  R.  R.  Co.  74  Ga.  509. 
R'y  Co.  12  Oregon,  124;  Marine  Bank  2  Yet  three  railroad  corporations 
V.  Ogden,  29  111.  248;  New  York  &  were  said  to  have  formed  a  partner- 
Sharon  Canal  Co.  v.  Fulton  Bank,  7  ship  in  Railroad  Co.  v.  Bixby,  55  Vt. 
Wend.  412,  414;  Pearce  v.  Madison  &  235;  and  a  corporation  and  an  indi- 
Indianapolis  R.  R.  21  How.  441 ;  State  vidual  wt-re  said  to  be  partners  in 
ex  rel.  Pearson  v.  Concord  R.  11.  Co.  Cutskill  Bank  v.  Hooper,  5  Gray,  574; 
Vol.  I— 10                              145 


§  134.  NATURE  AND  FORMATION. 

§  134:.  May  receive  capacity. —  It  results  from  the  reasons 
above  given  against  a  corporation  being  a  member  of  a 
partnership,  that  if  it  has  been  granted  capacity  it  may  be- 
come a  partner. 

In  Butler  v.  American  Toy  Co.  46  Conn.  136,  the  preamble  in  the 
company's  charter  recited  the  death  of  a  member  of  a  firm  which, 
with  another  firm,  constituted  the  partnership  called  the  American 
Toy  Co.,  and  that  the  corporation  was  formed  to  enable  the  sui'viv- 
ing  partners  and  the  representatives  of  the  deceased  to  continue  the 
business  for  which  the  corporation  was  formed.  This  was  held  by 
necessary  intendment  to  authorize  the  corporation  to  take  the  place 
of  the  firm  as  a  member  of  the  American  Toy  Co. 

In  Allen  v.  Woonsocket  Co.  11  R.  I.  288,  it  was  held  that  a  part- 
nership at  will  between  a  firm  and  an  individual,  where  the  individ- 
ual was  to  have  no  control  as  partner,  and  no  stockholder's  rights 
were  imperiled  because  one  person  owned  all  the  stock,  was  not 
ultra  vires.  But  the  suit  was  for  an  accounting  between  the  part- 
ners, which  would  probably  have  been  granted  even  if  the  contract 
were  ultra  vires. 

In  Catskill  Bank  v.  Gray,  14  Barb.  471,  a  corporation  formed  for 
the  manufacture  of  iron  leased  its  mills  for  five  years  to  Gray  by  a 
contract  by  which  it  was  to  receive  a  share  of  the  profits,  and  such 
control  as  to  render  the  contract  one  of  partnership;  and  in  an  action 
on  mercantile  paper  made  by  an  agent  of  the  mills,  it  was  held  that 
the  corporation  having  been  formed  to  manufacture  iron  could 
carry  out  this  purpose  by  making  such  a  partnership,  and  was  liable 
as  a  partner  on  the  paper.  But  this  case  is  ha'-dly  consistent  with 
the  general  rule. 

In  Ontario  Salt  Co.  v.  Merchants'  Salt  Co.  18  Grant's  Ch.  (Up. 
Can.)  540,  an  association  of  salt  manufacturers,  some  of  them  cor- 
porations, to  develop  the  business  and  sell  the  product,  the  associa- 
tion not  being  a  monopoly,  was  legal.  But  it  can  scarcely  be 
considered  a  partnership.^ 

Associations  of  connecting  railroads  or  other  common  carriers 
on  a  continuous  line  of  travel  are  frequently  formed  for  through 
transportation,  with  a  division  of  receipts  in  specified  proportions. 
These  are  held  legal,  as  are  many  other  pooling  arrangements,  on 

B.  c.  at  an  earlier  stage,  Catskill  B'k        i  A  corporation  was  also  a  partner 
V.  Gray,  14  Barb.  471,  582.  in  Jones  v.  Parker,  20  N.  H.  31, 

14G 


PERSONS  COMPOSING  THE  FIRK  g  ICG. 

ttie  ground  that  they  do  not  constitute  a  partnership;  for  although 
each  can  issue  through  tickets,  there  is  no  community  of  loss  nor 
interest  in  the  earnings  of  each  other,  but  a  mere  running  arrange- 
ment.* 

MARRIED  WOMEN. 

§  135.  In  general. —  The  complications  that  arise  where 
a  married  woman  is  or  has  acted  as  a  member  of  a  firm 
depend  for  solution  on  the  various  statutes  of  the  several 
states,  and  to  give  the  necessary  space  to  analyze  them  is 
out  of  the  question  in  this  book;  but  as  all  the  decisions 
have  never  been  collected  together,  I  shall  give  them  with 
an  approximate  classification.  The  cases  where  the  husband 
is  not  a  member  of  the  firm  will  be  treated  first.  In  some 
states  she  can  invest  her  separate  means  in  a  firm;  in  others, 
only  with  the  husband's  consent,  and  in  others  not  at  all. 
The  common  law  incapacity  of  a  married  woman  to  con- 
tract made  her  contract  of  partnership  wholly  void  where 
she  had  no  separate  estate.  But  where  she  had  a  separate 
estate  she  could  embark  it  in  a  partnership.  Her  capacity 
to  contract  a  partnership,  in  case  of  the  absence,  abandon- 
ment, separation  or  alienage  of  the  husband,  is  the  same  as 
in  other  contracts  in  such  cases. ^ 

§  136.  Statutes  —  Where  the  huslband  is  not  in  the  firm. 
Where  statutes  give  a  married  woman  power  to  sell  and 
contract  as  to  her  separate  property  and  to  carry  on  busi- 
ness, she  may  invest  it  in  a  partnership,  since  this  is  a  usual 
way  of  carrying  on  business;  and  it  is  no  objection  that  she 
thereby  becomes  liable  for  the  acts  of  others,  for  the  same 
happens  if  she  owns  stock  in  a  company  or  employs  an 
agent.  Her  separate  property  is  still  hers,  and  does  not 
become  liable  for  her  husband's  debts. ^ 

I  See  Hot  Springs  R.  R.  v.  Trippe,  v.  Vanderbilt,  19  Barb.  233.  And  see 

43  Ark.  465;  48  Am.  Rep.  65;  Ells-  supra,  §65. 

worth  V.  Tartt,  26  Ala.  733 ;  63  Am.        2  Thus,    where    the    husband    has 

Dec.  749;  Irvin  u.  Nashville,  C.  &  St.  been  absent  and  unheard  from  for 

L.  R'y,  92  111.  103;  34  Am.  Rep.  116;  seven  years,  see  Brown  v.  Jones,  18 

Tratt  V.  Ogdensburg  &  Lake  Cham-  N.  H.  230. 

plain  R.  R.  103  Mass.  557,  5G7 ;  Briggs        3  piumer  v.  Lord,  5  Allen,  460;  Ab- 

147 


gl37. 


NATURE  AND  FORMATION. 


Where  the  statute  allows  her  to  carry  on  a  trade  sep 
arately  from  her  husband,  the  employment  of  their  hus- 
bands by  a  firm  of  wives  is  carrying  on  business  separately 
from  the  husbands,  since  they  are  agents  and  not  owners.^ 

But  where  the  statutes  give  her  no  power  or  only  a  limited 
power  to  become  a  partner,  the  rule  of  the  common  law 
prevails  and  she  cannot  enter  a  firm.^ 

§  137.  Property  in  such  cases. —  That  though  she  has  no 
capacity  to  become  a  partner,  and  yet  does  so,  her  property  still  re- 
mains hers,  and  her  husband  cannot  assign  it,  has  been  held/  Noi- 
can  bis  creditors  reach  it;  *  a  trespasser  on  the  property  —  one  who 
levied  on  the  partnership  property  under  execution  against  the  hus- 
band —  cannot  when  sued  by  the  firm  question  her  capacity."  She 
may  claim  as  creditor  in  case  of  insolvency  of  the  firm  for  a  loan 
to  it  —  she  did  not  in  this  case  seek  to  recover  her  capital;*  and  her 


bott  V.  Jackson,  43  Ark.  212 ;  Dupuy 
V.  Sheak,  57  Iowa,  361;  Silveus  v. 
Porter,  74  Pa.  St.  448;  Newman  v. 
Morris,  52  Miss.  402.  And  see  Ed- 
wards V.  Thomas,  66  Mo.  468,  481. 

1  Kutcher  v.  Williams,  40  N.  J.  Eq. 
436.  In  the  following  cases,  also,  a 
married  woman  was  a  member  of  a 
partnership,  but  the  consent  of  the 
husband  incidentally  appeal's:  Craig 
V.  Cliandler,  6  Colorado,  543,  where 
she  bought  her  husband's  interest  in 
a  firm  and  claimed  her  share  on  dis- 
solution ;  Merchants'  Nat'l  Bank  v. 
Raymond,  27  Wis.  569;  Atwood  v. 
Meredith,  37  Miss.  635;  Bitter  v. 
Rathman,  61  N.  Y.  512;  Penn  v. 
Whitehead,  17  Gratt,  503.  A  mar- 
ried executrix  of  the  estate  of  a  de- 
ceased partner,  the  firm  being  con- 
tinued by  wife,  is  not  a  partner,  for 
she  receives  profits  as  executrix  and 
not  from  her  own  estate.  Brasfield 
i\  French,  59  Miss.  632.  Of  the 
above  cases  the  husband  was  the 
wife's  manager  in  the  conduct  of  the 
business  in  Kutcher  v.  WilUams, 
40  N.  J.  Eq.  436 ;  Penu  v.  Wliitehead, 


17  Gratt.  503;  Atwood  v.  Meredith, 
37  Miss.  635;  Newman  v.  Morris,  53 
Miss.  402;  Dupuy  v.  Sheak,  57  Iowa, 
361. 

2Bradstreet  v.  Baer,  41  Md.  19; 
Frank  v.  Anderson,  13  Lea  (Tenn.), 
695;  Carey  v.  Burruss,  20  W.  Va.  571; 
43  Am.   Rep.  790;  Brown  v.  Jewett, 

18  N.  H.  230;  Todd  v.  Clapp,  118 
Mass.  495;  and  dicta  in  Howard  t?. 
Shaw,  91  Ind.  384;  46  Am.  Rep.  607; 
Brown  v.  Chancellor,  61  Tex.  437,  445; 
Miller  v.  Marx,  65  id.  131;  Howard 
V.  Stephens,  52  Miss.  239.  Neverthe- 
less tlie  question  was  raised  wliether 
a  married  woman  could  become  lia- 
ble as  a  partner  by  holding  out  in 
Rittenhouse  v.  Leigh,  57  Miss.  697. 

3  Howard  v.  Stephens,  52  Miss.  239. 

<Maghee  v.  Baker,  15  Ind.  254; 
Horneffer  v.  Duress,  13  Wis.  [603] ; 
Duress  v,  Horneffer,  15  id.  [195]. 
Contra,  that  the  property  invested 
would  be  liable  for  debts,  and  the 
profits  would  belong  to  the  husband. 
Miller  v.  Marx,  65  Tex.  131. 

5  Horneffer  v.  Duress,  supra. 

•Frank  v,  Anderson,  13  Lea,  695. 
148 


PERSONS  CO^IPOSING  THE  FIRM.  §  138. 

copartners  cannot  deny  her  capacity  to  sue  alone  for  an  accounting 
and  dissolution.'  As  her  partnership  is  a  nullity,  the  other  partner 
can  be  sued  alone.*  The  firm's  property  is  liable  for  its  debts.' 
The  earnings  or  profits  become  the  husband's  property  is  also  held.* 

8  138.  husband  deemed  the  debtor,  when. —  Other 

jurisdictions  hold  that  if  a  married  woman  assumes  to  enter 
a  general  mercantile  partnership  not  connected  with  her 
separate  property,  the  husband,  if  he  assented  to  her  so 
doing,  is  deemed  the  partner  and  she  merely  his  agent,  and 
the  property  or  its  proceeds  is  liable  for  his  debts.  ^ 

One  who  marries  a  woman  who  is  a  member  of  a  firm  be- 
comes liable  for  the  existing  partnership  debts,  since  she  was 
liable  in  solido,  and  this  not  because  he  receives  property 
from  her,  but  because  her  legal  existence  is  suspended  or 
merged  in  his;^  but  her  partnership  debts  incurred  after 
coverture  in  a  firm  with  her  separate  estate,  he  having  no 
interest  and  no  control,  stand  on  a  different  basis.'' 

So  if  his  labor  and  skill  are  mixed  up  with  hers  in  a  busi- 
ness carried  on  by  both,  the  business  is  deemed  his  and  is 
subject  to  his  debts.® 

1  Bitter  v.   Rathman,  61  N.  Y.  512.        6  Alexander  v.  Morgan,  31  Ob.  St. 

2  Carey  v.  Burruss,  20  W.  Va.   571 ;    546. 

43  Am.  Rep.  790.  Ud.  551. 

3  Newman  v.  Morris,  52  Miss.  402;  8  National  Bank  v.  Sprague,  20  N. 
Miller  v.  Marx,  65  Tex.  131.  And  see  J.Eq.  13.  The  reversal  of  this  case 
Clay  V.  Van  Winkle,  75  Ind.  239 ;  in  21  N.  J.  Eq.  530,  did  not  involve 
Edwards  v.  Thomas,  66  Mo.  468.  this  point,  but  in  so  far  as  it  prevents 
But  see  Bradstreet  v.  Baer,  41  Md.  her  employment  of  the  husband  in  a 
19.  Yarbrough  v.  Bush,  69  Ala.  firm  in  which  her  capital  is  her  sepa- 
170,  was  where  an  action  was  rate  property  it  would  not  be  con- 
brought  against  the  partnership  in  sisted  with  Kutcher  v.  Williams,  40 
the  firm  name  under  the  statute,  and  N.  J.  Eq.  436,  cited  above.  That  the 
therefore  no  personal  liability  would  personal  property  of  the  wife  is  pre- 
be  adjudged ;  that  her  plea  of  covert-  sumptively  his,  and  therefore  her 
ure  was  no  defense,  although  she  interest  in  a  firm  will  be  presumed 
could  not  incur  a  contractual  lia-  to  be  his,  and  a  creditor  of  the  firm 
l)iliiy,  because  the  partnership  prop-  may  tlierefore  join  him  as  defend- 
crty  was  bound  for  the  debts.  .ant,  and  she  may  be  stricken  out  of 

^  Miller  v.  Marx,  65  Tex.  131;  the  judgment,  his  consent  to  the 
Cranor  v.  Winters,  75  Ind.    301,  303.     rendition    of    the  judgment     being 

5  Swasry  V.  Antram,  24  Oh.  St.  87 ;  deemed  a  ratification  of  her  purchase 
13  Am.  Law  Reg.  (N.  S.)  577.  of    goods  the    price  of  which    waa 

149 


^  139. 


NATURE  AND  FORMATION. 


And  where  the  hushand  is  allowed  to  act  and  appear  ag 
the  sole  owner,  he  will  be  deemed  such  as  to  creditors,  and 
the  wife  cannot  then,  after  judgment  against  him,  claim  the 
property  to  be  partnership  assets.^ 

§  139.  As  a  partner  of  her  husfeand. —  It  has  been  held 
by  the  preponderance  of  authorities,  even  under  the  broad- 
est statutes,  that  a  married  woman  has  not  capacity  to  con- 
tract a  partnership  with  her  husband,  or,  in  other  words,  to 
become  a  member  of  a  firm  in  which  her  husband  is  a  part- 
ner, even  in  those  states  where  she  may  embark  in  another 
partnership.'^  In  states  where  she  cannot  be  a  partner  in 
any  firm,  a  fortiori  she  cannot  become  her  husband's  part- 
ner; and  though  she  holds  herself  out  as  such  partner,  and 
her  means  give  credit  to  the  firm,  she  is  not  liable  for  its 
debts;  she  cannot,  by  acts  or  declarations,  remove  her  own 
disabilities. 


here  sued  for,  Wells  v.  Simmons, 
66  Mo.  617,  620.  That  a  married 
woman  cannot  put  her  separate  prop- 
erty into  a  partnership  and  retain  it 
as  separate  property,  and  therefore 
cannot,  without  her  husband's  join- 
ing, recover  a  judgment  in  connection 
with  the  other  partners ;  he  was  here 
an  agent  in  the  management  of  the 
business,  Bradford  v.  Johnson,  44 
Tex.  381.  That  if  a  feme  covert 
partner  employing  her  husband  as 
her  agent  in  the  business  buys  out 
her  copartner,  this  dissolves  the 
agency,  and  if  tlie  husband  thereafter 
conducts  the  business  in  his  own 
name,  he,  and  not  she,  is  liable  for 
the  debts  thereafter  contracted, 
Hamilton  v.   Douglas,  46  N.  Y.  218. 

iParshall  v.  Fisher,  43  Mich.  529; 
Norris  v.  McCanna,  29  Fed.  Rep.  757. 

2  Lord  V.  Parker,  3  Allen,  127 ; 
Plumer  v.  Lord,  5  id.  4C0;  S.  C.  7  id. 
481 ;  Bowker  v.  Bradford,  140  Mass. 
521;  Haas  v.  Shaw.  91  Ind.  384; 
46  Am.    Rep.    607;    Montgomery  v. 


Sprankle,  31  Ind.  113;  Payne  v. 
Thompson,  44  Oh.  St.  192;  Fairlee  v. 
Bloomingdale,  14  Abb.  Now  Cas. 
341;  67  How.  Pr.  293;  Kaufman  v. 
Schoeffel,  37  Hun,  140  {contra,  Graff 
V.  Kinney,  id.  405 ;  15  Abb.  N.  Cas. 
397) ;  Wallace  v.  Finberg,  46  Tex.  35; 
Cox  V.  Miller,  54  Tex.  16;  Boyle'a 
Estate,  Tucker  (N.  Y.),  4;  Brown  v. 
Chancellor,  61  Tex.  437,  445;  Mdler  u. 
Marx,  65  id.  131 ;  Cosio  v.  De  Bernales, 
Ryan  &  Moody,  102;  Mayo  v.  Soys- 
ter,  30  Md.  402,  where  it  was  held 
improper  to  join  the  wife  as  co- 
defendant  to  collect  by  attachment 
a  debt  incurred  by  them  while  trad- 
ing as  "The  New  Hope  Mine;"  and 
the  same  ruling  was  made,  incident- 
ally or  in  dicta,  in  the  following 
cases:  Knott  v.  Knott,  6  Oregon, 
142,  150;  Wilson  v.  Looniis,  55  111. 
352;  Huffman  v.  Copeland,  86  Ind. 
224.  227;  Sherman  v.  Elder,  1  Hilton 
(N.  Y.),  178;  Chambovet  v.  Cagney, 
35  N.  Y.  Superior  Ct.  474;  and  lli  > 
point  was  raised  but  not  decided  in 


150 


PERSONS  COMPOSING  THE  FIRM. 


§140. 


The  partnership  assets  are  liable  for  the  partnership  dehts;  as 
where  a  husband  was  in  a  firm  with  the  wife's  money  and  she 
afterwards  bought  out  the  other  partner,  if  a  creditor  of  the  firm 
make  a  levy  she  cannot  replevy  on  a  claim  that  the  assets  are  her 
individual  property.* 

§  140.  Effect  on  property.— If,  however,  she  neverthe- 
less does  join  in  a  partnership  with  her  husband,  or  in 
which  he  is  a  member,  the  result  to  herself  and  to  her  prop- 
erty is  variously  ruled  under  the  v  arious  statutes,  as  shown 
in  the  foot-note.^ 


Francis  v.  Dickel,  68  Ga.  255.  For 
the  Mexican  law,  see  Fuller  v.  Fer- 
guson, 26  Cal.  546. 

1  Clay  V.  Van  Winkle,  75  Ind.  239. 
The  only  cases  in  which  a  con- 
trary rule  is  hinted  are  the  follow- 
ing: Zimmerman  v.  Erhard,  8  Daly, 
311 ;  58  How.  Pr,  11  (aff'd  on  other 
grounds,  83  N.  Y.  74) ;  but  the  only 
one  of  the  opinions  which  bases  the 
case  on  this  doctrine  is  denied  to  be 
lawin  Fairlee  V.  Bloomington,  supra; 
Ploss  V.  Thomas,  6  Mo.  App.  157,  in 
which  case  it  was  admitted  that  con- 
tracts were  not  enforceable  against 
her;  Edwards  v.  McEnhill,  51  Mich. 
160,  the  court  refused  to  decide  the 
point,  saying  that  if  she  had  such 
capacity  the  facts  showing  it  must 
l)e  stated;  and  In  re  Kinkead,  3 
Biss.  405;  7  Bankr.  Reg.  439  (U.  S. 
D.  C.  111.),  wherein  Blodgett,  J., 
says:  "lean  see  nothing  in  the  re- 
lation of  husband  and  wife  which 
would  prevent  the  wife  from  being 
her  husband's  partner  in  business  if 
she  could  be  a  partner  with  any 
other  person."  In  Graff  v.  Kinney,  37 
Hun,  405;  S.  C.  15  Abb.  New  Cas.  397, 
it  was  held  that  a  married  woman 
could  form  a  partnership  with  her 
husband  with  reference  to  her  sepa- 
rate property,  on  the  ground  that  she 
could  employ  him  as  agent,  and  a 


partnership  is  merely  a  mutual 
agency;  and  in  Scott  v.  Conway,  58 
N.  Y.  619,  a  married  woman  defend- 
ant was  not  allowed  to  interpose  the 
defense  that  she  liad  a  dormant  part- 
ner, viz.,  her  husband,  but  is  held  to 
the  truth  of  the  appearance  ahe  has 
held  out. 

2  It  was  held  that  she  became  a 
creditor  of  the  husband  or  of  the 
firm  in  Boyle's  Estate,  1  Tucker 
(N.  Y.),  4;  and  see  Lord  v.  Davis,  3 
Allen.  131;  Huffman  v.  Copeland,  86 
Ind.  224;  see,  also,  Glidden  v.  Taylor, 
16  Oh.  St.  500.  That  the  other  part- 
ners cannot  deny  her  a  share  in  the 
profits  (the  husband  does  not  appear 
to  claim  it  as  his  in  this  case),  Knott 
V.  Knott,  6  Oregon,  142,  150.  That 
the  property  still  remains  hers  as 
against  the  husband's  creditors,  Ploss 
V.  Thomas,  6  Mo.  App.  157.  That  the 
earnings  are  his,  there  being  no  cap- 
ital in  this  case,  Plummer  v.  Trost, 
81  Mo.  425.  That  the  property  is 
perhaps  hers  inter  se,  as  if  it  were  a 
loan  to  her  husband,  but  is  liable  for 
his  debts,  Wilson  v.  Loomis,  55  111. 
352.  That  it  ceases  to  be  her  sepa- 
rate property  and  becomes  his.  Lord 
V.  Parker,  3  Allen,  127,  129;  and  dio- 
tuvi  in  Sherman  v.  Elder,  1  Hilt. 
(N.  Y.)  178.  Where  both  are  in  the 
"business"  of  carrying  on  a  farm. 


151 


3  142.  NATURE  AND  FORMATION. 

§  14:1.  Wife's  claim  agaiust  her  husband's  firm. — Where 
the  wife  of  one  of  the  partners  lent  money  to  or  performed 
service  for  the  firm,  or  wlaere  a  woman  wlio  is  creditor  of  a 
firm  marries  one  of  the  partners,  equity  will  enforce  the 
debt  where  the  statute  preserves  her  choses  in  ac  tion  as 
separate  property  in  a  suit  by  her  to  recover  it  back;  ^  but  if 
the  statute  does  not  preserve  it  as  separate  property,  the 
marriage  extinguishes  the  debt,  and  this  terminates  it  as  to 
the  other  partners  also.- 

But  where  a  statute  allows  a  feme  covert  to  contract  as 
if  sole,  except  with  her  husband,  she  cannot  contract  with  a 
firm  of  which  he  is  a  partner,  for  this  is  contracting  with 
him  jointly  with  others.^  Yet,  though  the  firm's  note  pay- 
able to  her  is  void,  she  can  hold  the  indorser,  for  he  is 
estopped  to  deny  the  maker's  capacity.*  And  she  is  bound 
if  she  indorses  for  the  accommodation  of  the  fii-m ;  ^  and  if  she 
invests  in  her  husband's  firm  and  afterwards  assigns  the 
fund,  and  the  firm  promise  the  assignee  to  pay  him,  he  can 
maintain  an  action  "on  the  promise.® 

INFANTS. 

§  142.  Voidable,  not  void.— The  ordinary  rules  as  to  in- 
fants' contracts  apply  to  partnerships,  viz. :  That  such  con- 
tracts —  leaving  out  those  for  necessaries,  and  the  capacity  to 

which  was  the  wife's  separate  prop-  3  Kenworthy  v.  Sawyer,  125  Mass. 

erty,  both  were  held  liable  on  a  joint  28;  Edwards  v.  Stevens,  3  Allen,  315. 

note,  on  the  principle  that  she  can  <  Kenworthy  v.  Sawyer,  125  Mass. 

incur  debts  on  the  credit  of  her  sep-  28,  29. 

arate  property.   Krouskop  v.  Shontz,  5  id. 

51  Wis.  204,  217.  «  Lord  v.  Davis,  3  Allen,   131.     A 

1  Bennett  v.  Winfield,  4  Heiok.  wife  was  creditor  of  the  firm  of  A., 
(Tenn.)440;  Devinu.  Devin,  17How.  B.  &  C.  C.  sold  out  to  D.  and  the 
Pr.  514;  Adams  u  Curtis,  4  Lansing,  firm  became  A.,  B.  &  D.,  and  her 
164;  Gould  v.  Gould,  35  N.  J.  Eq.  37;  husband  was  a  member  of  it.  Pay- 
id,  502;  36  id.  380;  Benson  v.  Mor-  ments  by  him  to  her  upon  the  debt 
gan,  50  Mich.  78,  holding  also  that  were  held  to  be  evidence  of  the  as- 
the  husband  has  no  power  to  settle  sent  of  all  parties  to  a  substitution  of 
with  his  partners  for  her  claim.  And  the  new  firm  for  the  old  as  debtors, 
see  cases  in  the  preceding  note.  for  they  are  presumed  to  be  known 

*Fox  V.  Johnson,  4  Del.  Ch.  580.  to  all  the  partners,  where  there  are 

153 


PERSONS  COMPOSING  THE  FIRM.  §  143. 

give  a  power  of  attorney,  and  the  somewhat  controverted 
question  of  contracts  clearly  not  for  the  infant's  benefit,  such 
as  going  security  —  are  not  void,  but  voidable,  and  that  he 
alone  can  avail  himself  of  the  privilege  of  avoiding  them. 
Also  that  if  he  fraudulently  represents  himself  to  be  of  age, 
he  may  be  bound  to  others  who  act  on  the  faith  of  such 
representations,  and  may  be  liable  to  restore  any  advan- 
tage thereby  gained.  This,  however,  is  not  a  contractual 
obligation,  but  an  estoppel  to  take  advantage  of  his  own 
fraud. 

These  ordinary  rules  applied  to  partnership  law  produce 
complications  which  will  not  be  noticed. 

An  infant's  contract  of  partnership  is  therefore,  of  course, 
not  void,  but  voidable.     He  can  be  a  partner.^ 

It  was  hinted  in  one  case  that  an  infant,  by  the  mere  act 
of  forming  a  partnership,  holds  himself  out  as  an  adult  and 
practices  a  fraud.  ^  But  this  is  not  the  law.  A  contract  by 
an  infant  is  not  made  binding  thus,  and  there  is  no  estoppel 
without  actual  misrepresentation.* 

The  consent  of  the  parent,  though  he  be  insolvent,  to  an 
infant's  becoming  a  partner,  is  a  release  of  his  services,  and 
the  creditors  of  the  parent  have  no  recourse  on  the  minor's 
earnings.* 

§  143.  Riglits  and  powers  inter  se. —  While  the  mfant  is 
a  partner,  he  has  all  the  rights  and  powers  of  one  to  hold 

no    circumstances   of  concealment,  he  was  therefore    not  a  necessary 

Osborn  v.  Osborn,  36  Mich.  48.  party  to  a  suit  for  an  accounting, 

1  Goode  V.  Harrison,  5  B.  &  Aid.  McGunn  v.  Hanlin,  29  Mich.  476. 

147;    Whitney  v.    Dutch,    14   Mass.  2  Kemp  v.  Cook,  18  Md.  130,  138. 

457 ;    7  Am.    Dec.   229 ;    Dunton  v.  3  Thus,  where  au  infant  was  a  secret 

Brown,  31  Mich.  182,  and  the  numer-  partner  and  falsely  represented  his 

ous  cases  hereinafter  cited,  assume  ostensible    partner    as    worthy    of 

the  same  doctrine.     Where  plaintiff  credit  in  order  to  obtain  profit   for 

on  one  part  agreed  toform  a    part-  both,  his  infancy  is  a  defense  to  an 

nership  with  defendant  and   his  in-  action  for  the  price  of  the  goods  ob- 

fant  brother,  representing  together  tained,  though  the  seller  could  have 

the  other  interest,  but  the  partner-  rescinded  for  fraud   and   reclaimed 

ship  articles  were  signed  only  by  the  them.    Vinsen  v.  Lockwood,  7  Bush, 

adult  brother,  it  was  held  that  the  458. 

infant  had  not  become  a  partner;  that  *  Penn  v.  Whiteliead,  17  Gratt.  503. 

153 


§  144.  NATURE  AND  FORSIATION. 

possession  of  the  assets,  collect  and  pay  debts,  and  bind  the 
firm  by  contracting  obligations  in  its  name.^ 

The  adult  partner  who  has  contracted  a  partnership  rela- 
tion with  an  infant,  on  the  faith  of  the  latter's  fraudulent 
representations  that  he  is  of  age,  can  rescind  or  dissolve  for 
this  reason,  for  otherwise  he  might  be  ruined  by  the  con- 
tracts of  a  partner  who  could  bind  him  and  repudiate  his 
own  liability.^  But  in  the  absence  of  such  fraud  he  is 
bound,  for  the  infant  alone  can  avail  himself  of  this  inca- 
pacity. Hence,  if  a  parent  without  authority  invests  his 
children's  money  in  a  partnership,  the  adult  partner  cannot 
resist  their  right  to  insist  on  the  partnership.* 

Where  an  iufant  partner  of  a  firm,  which  had  a  claim  on  an  in- 
surance company,  was  induced  by  the  debtor's  fraud  to  settle  the 
claim,  and  the  firm  received  and  divided  the  money,  but  afterwards 
sought  to  enforce  a  rescission  of  the  settlement,  it  was  ruled  that 
they  must  payback  the  whole  amount,  although  the  infant  waa 
unable  to  restore  his  share.^ 

§  1 44.  Accounting  and  payment  of  losses. —  The  infant  can 
call  on  his  partner  for  an  accounting  and  a  share  of  the 
profits.^  And  his  partner  can  require  the  infant  to  account. 
The  court  has  the  same  power  to  decree  a  dissolution  and 
compel  an  accounting  for  the  misconduct  of  the  infant  as  in 
other  cases.® 

The  adult  partner  has  a  right  to  insist  upon  the  assets  of 
the  firm  being  applied  to  the  debts.  The  infant's  right  to 
rescind  is  subordinate  to  this  equity  of  the  adult  partner. 

1  Bush  V.  Linthicura,  59  Md.  344, 349.  sideratiou  of  an  outfit  to  enable  him 

2  Id.  355.  to  go  to  California  on  a  mining  ad- 
8  Stein  V.  Robertson,  30  Ala.  286.  venture,  agreed  to  give  one- third  of 
4 Brown   v.    Hartford   F.   Ins.  Co.  the  profits  to  the   person  wl)o  fur- 

117  Mass.  479.  nished   the  outfit,  and    having   sent 

5  Gay  u  Jolinson,  32  N.  H.  167.  back    the    agreed   one-third    of  the 

<>Bush  V.    Lintliicum,  59  Md.    344  profits,  sought  to  rescind  and  recover 

(holding  tliat  he  cannot  be  made  per-  them  again,  deducting  tlie  amount 

eonally   answerable   for   the    costs);  of  the  outfit;  but  tiie  court  refused 

Kitchen  v.  Lee,  11  Paige,  107;  Breed  to  allow  this,  saying  that  otherwise 

V.    Judd,  1   Gray,  455.     In   Breed  v.  the  defendant  would  have  no  com- 

Judd,  1  Gray,  455,  an  infant,  in  con-  pensation   for  his  risk. 

154 


PERSONS  COMPOSING  THE  FIRM.  §  Uo. 

It  is  not  like  the  case  of  performing  services  or  delivering 
money  to  another;  but  the  possession  is  deemed  joint  and 
not  in  the  adult  only.  The  infant's  disaffirmance  is  execu- 
tory only,  and  he  cannot  draw  out  his  original  capital  and 
throw  the  entire  loss  upon  the  adult  partner,  nor  compel 
the  latter  to  bear  the  burden  of  the  debts  .except  in  excess 
of  the  entire  assets  of  the  firm.^ 

§  145.  Ratiflcatiou. —  If  the  infant,  after  coming  of  age, 
ratify  the  prior  contracts  of  the  partnership,  he  becomes 
bound  for  its  debts. ^  Whether  there  is  or  is  not  a  ratifica- 
tion seems  to  be  a  question  of  intention  on  his  part,  to  be 
determined  by  his  conduct  or  declarations.  It  is  doubtful 
whether  remaining  in  the  partnership  and  continuing  busi- 
ness is  a  ratification  of  it  by  the  infant  as  to  prior  contracts 
made  during  the  minority. 

Mere  continuauce  was  deemed  not  to  show  sucli  intent  in  two 
cases,  in  one  of  which  the  note  in  suit  was  not  ratified  by  contin- 
uing in  business  after  majority  without  knowledge  of  the  note.' 

And  in  the  other,  a  promise  after  coming  of  age  to  pay  his  share 
of  notes,  was  held  to  be,  not  a  ratification,  but  a  refusal  to  rat- 
ify, but  that  dealing  with  such  part  of  goods  unpaid  for  as  re- 
mained on  hand  was  a  ratification  as  to  them,  for  he  could  have 
returned  them  * 

1  Page    V.    Morse,    128    Mass.    99 ;  a  partnership,  he  cannot  recover  it  \ 

Moley  V.  Brine,  120  Mass.  324;  Dun-  back,  and   consequently    could  not 

ton  V.  Brown,  31  Mich.  182.    In  Dun-  prove  it  against  his  partner's  estate 

tonv.  Brown,  31  Mich.  182,  where  the  in  bankruptcy. 

infant  partner  sought  to  rescind  the  2  Whitney  v.  Dutch,   14  Mass.  457; 
contract  of  partnership,  and  recover  7  Am.  Dec.  229. 
his  capital  and  value  of  his  services,  3  Crabtree  v.  May,  1   B.  Mon.  289. 
it  was  said  that  neither  he  while  un-  The  exact  contrary  was  ruled  in  Mil- 
der age,  nor  his  guardian,  could  deter-  ler  u.  Sims,  2  Hill   (S.    Ca.),  L.  479, 
mine  whether  a  voidable  contract  and  the  cases  cannot  be  reconciled, 
should  be  annulled.     In  Sparman  v.  unless  in  the  latter  there  was  dealing 
Keiin,    83    N.    Y.    245,  however,  he  with  the  goods  for  whicli  the  note 
was   allowed  to  avoid  the   partner-  was  given;  but  the  ruling  was  said 
ship  contract  and  recover  his  capital,  in  Dana  v.  Stearns,  3  Cush.  372,  376, 
In  Ex  parte  Taylor,  8  De  G.  M.  &  G.  to  go   beyond  any  case  within  the 
254;  25  L.  J.   Bkr.  35;  2  Jur.   (N.   S.)  knowledge  of  the  court. 
220,  it_was_decixled  that  if  an  infant  ■•Minock  v.    Sliortridge,    21  Mich, 
pay  a  premium  for  admittance  into  304. 
~~      -^                              '            155 


§  147.  NATURE  AND  FORMATION. 

So,  where  two  partners,  both  minors,  gave  a  mortgage  to  secure 
future  advances  of  goods,  if  part  of  the  goods  was  furnished  after 
one  came  of  age,  this  ratified  the  mortgage  as  to  him.* 

Where  the  infant  partner  sold  his  interest  in  the  firm  to  the 
adult,  taking  a  chattel  mortgage  to  secure  the  purchase  money,  and 
after  coming  of  age  proved  the  mortgage  as  a  claim  on  his  part- 
ner s  estate  in  insolvency,  this  was  held  not  to  ratify  the  partner- 
ship so  as  to  make  him  liable  for  the  debts,  but,  if  anything,  to 
ratify  the  dissolution  only.* 

If  the  infant  deals  with  the  goods  under  a  new  title  after  coming 
of  age,  as  where  on  sale  of  partnership  effects  they  were  bought 
in  by  his  grandfather,  and  afterwards  by  him  sold  to  the  infant 
this  is,  of  course,  no  ratification.^  Where  judgment  was  rendered 
against  both  partners,  the  infant's  omission  to  attack  it  for  six 
years  after  majority  was  deemed  a  ratification.'* 

§  146.  contracts  after  majority. —  But  on  contracts 

made  by  the  firm  after  the  infant  comes  of  age,  he  is  bound 
by  continuing  in  the  business.  And  where  he  had,  while 
an  infant,  purchased  goods  together  with  his  partners,  but 
did  no  partnership  act  after  coming  of  age,  he  was  held 
bound  for  subsequent  purchases  by  the  partners  from  the 
same  dealer,  if  no  knowledge  of  dissolution  was  had  by  such 
dealer;  the  court  holding  that  the  partnership  must  be 
deemed  to  continue  until  notice  to  the  contrary.* 

§147.  Creditors'  rights  in  the  assets. —  The  creditors 
have  the  right  to  subject  the  entire  assets  of  the  firm,  al- 
though one  of  the  partners  be  a  minor.  His  plea  of  infancy 
avoids  any  personal  responsibility  for  the  debt,  but  will  not 
exempt  his  interest  in  the  joint  property,  for  he  has  no  sep- 
arate interest  in  the  joint  property  until  all  the  debts  are 
paid  and  a  division  made."    Nor  can  separate  creditors  of  an 

iKeegan  v.  Cox,  116  Mass.  289.  Bush  v.  Linthicum,  59  Md.  344,  349; 

2  Dana  u.  Stearns.  3  Gush.  372,376.  Whittemore  v.  Elliott,  7   Ilun,  518. 

3  Todd  V.  Clapp.  118  Mass.  495.  See  Furlong  v.  Bartlett,  21  Pick.  401. 
*Kemp  V.  Cook,  18  Md.  130.  A  minor,  whose  contribution  to  the 
6Goode  V.  Harrison,  5   B.  &  Aid.  capital  of  the  firm  was   $1,000,  but 

147.     But  see  King   v.   Barbour,  70    who  had  sold  out  liis  interest  to  his 
Ind.  35.  copartner  for  that  sum,    and   thus 

6  Yates  u.  Lyon,  61  N.  Y.  344,  346;    dissolved   the    partnership    and    re 

156 


PERSONS  COMPOSING  THE  FIRM. 


§  149. 


adult  partner  claim  an  equality  of  distribution  in  insolvency 
with  partnership  creditors  on  the  ground  of  the  infancy  of 
the  copartner,  since  he  alone  can  avoid  the  partnership.^ 

§  148.  Actious  l)y  and  against. —  In  actions  to  collect  de- 
mands due  tlie  firm  the  infant  partner  must  be  co-plaintiff 
with  the  others.^  In  actions  against  the  firm  the  infant 
must  be  made  a  co-defendant;  this  follows  from  the  prin- 
ciples that  his  contract  is  not  void,  and  that  no  one  but 
himself  can  avoid  it;  the  plaintiff  cannot  treat  it  as  void, 
but  must  join  him;  moreover,  he  has  a  right  to  be  heard.^ 

On  plea  of  infancy  by  the  minor  defendant,  plaintiff  may 
reply  confirmation  of  the  contract  by  him  after  coming  of 


age. 


§  149.  Jndgment  is  a  partnership  debt. —  A  judgment  on 
a  demand  due  from  the  firm  is  a  partnership  debt,  whether 
the  infant  was  dismissed  or  retained  as  a  party;  and  even  if 
there  was  but  one  adult  partner,  and  the  judgment  is  against 
him  alone,  after  plea  of  infancy.     Hence,  if  several  actions 


ceived  back  his  capital,  is  entitled  to 
an  injunction  to  prevent  a  levy  of 
execution  on  his  property  under  a 
judgment  got  against  the  firm  with- 
out his  knowledge,  Vansyckle  v. 
Rorback,  6  N.  J.  Eq.  234. 

1  David  V.  Birchard,  53  Wis.  493, 
497.  And  see  Yates  v.  Lyon,  61  N. 
Y.  344, 

2  Teed  v.  Elworthy,  14  East,  210; 
Osburn  v.  Farr,  42  Mich.  134.  A 
dictum  to  the  contrary  occurs  in 
Phillips  V.  Penny  wit,  1  Ark.  59. 

3  Wamsley  v.  Lindenberger,  3 
Rand.  (Va.)  478 ;  Slocum  v.  Hooker, 
13  Barb.  536  (reversing  s.  C  13  id. 
563);  Mason  v.  Denison,  15  "Wend. 
64.  In  former  times,  when  the  in- 
fant's contract  was  void,  it  was  held 
proper  not  to  join  him  as  defendant; 
and  when  his  nou-joiniler  was 
pleaded,  to  reply  that  tlie  partner  not 
joined    was  an   infant.     Burgess  v. 


Merrill,  4  Taunt.  408;  Gibbs  v.  Mer- 
rill, 3  id.  307;  Jaff  ray  u.  Frebain,  5 
Esp.  47 ;  Chandler  v.  Parkes,  3  id.  76. 
But  these  cases  cannot  be  considered 
law  unless  it  be  in  a  case  where  the 
contract  is  void  as  to  the  omitted 
partner,  as  in  some  states  in  the 
cases  of  married  women. 

4  Kirby  u.  Cannon,  9  Ind.  371.  It 
has  been  held  that  on  plea  of  infancy 
the  plaintiff  might  dismiss  as  to  the 
infant  and  recover  against  the  others 
without  being  compelled  to  resort  to 
a  new  action,  for  a  release  of  the  in- 
fant who  has  not  confirmed  his  con- 
tract does  not  release  the  others. 
Kirby  v.  Cannon,  9  Ind.  371 ;  Wood- 
ward V.  Newhall,  1  Pick.  500;  Hart- 
ness  V,  Thompson,  5  Johns.  160.  And 
on  plea  of  infancy,  judgment  can  go 
against  the  adults.  Tuttle  v.  Cooper, 
10  Pick.  281;  Hartness  v.  Thompson, 
5  Johns.  160. 


167 


§  151.  NATURE  AND  FORMATION. 

are  brought  against  the  firm,  and  the  minor  pleads  infancy 
to  some  and  not  to  others,  and  some  of  the  judgments  are 
therefore  against  the  adults  alone  and  some  against  all  the 
partners,  yet  the  judgments  stand  on  an  equality  in  the  dis- 
tribution of  the  firm's  assets;  for  pleading 'infancy  is  not  a 
disaffirmance  of  the  partnership,  but  a  mere  denial  of  indi- 
vidual liability.^ 

In  view  of  the  right  of  the  adult  partner  to  have  the  assets  of 
the  firm  applied  to  the  partnership  debts,  and  the  right  of  its  cred- 
itors to  secure  priority  in  the  distribution  over  the  separate  creditors 
of  the  individual  partner,  there  would  doubtless  be  no  impropriety 
in  retaining  the  infant  as  a  party,  with  a  proper  restriction  on  the 
judgment  against  execution  on  his  individual  property.* 

§  150.  A  firm  as  partner  in  another  firm. —  A  partner- 
ship may  inter  se  be  regarded  as  a  member  of  a  firm.  The 
liability  in  solido  of  each  partner  to  creditors  renders  this 
unimportant  as  to  third  persons,  but  inter  se,  as  bearing  on 
distribution  and  on  liability  to  each  other,  it  may  be  very 
important.  The  intention  of  the  parties  must  be  ascer- 
tained and  is  the  sole  test. 

In  In  re  Hamilton,  1  Fed.  Rep.  800,  where  two  firms  formed  a 
conjoint  firm,  each  firm  and  not  each  individual  was  intended  to 
be  a  partner,  this  intention  being  inferred  from  the  facts:  1.  That 
there  was  no  firm  name,  but  paper  of  the  conjoint  firm  was  made 
in  the  name  of  the  separate  firms.  2.  The  agreement  of  partner- 
ship was  signed  in  the  firm  names,  3.  Profits  and  losses  were 
allotted  to  firms  and  not  to  individuals.  4.  The  separate  firms 
presented  claims  upon  the  joint  fund  in  their  firm  names.* 

DORMANT  PARTNER. 

§  151.  What  is  a  dormant  partner. —  A  dormant  partner 
is  one  who  takes  no  active  part  in  the  business  and  whose 

iWliitteniore  v.  Elliott,  7  Ilun,  Mason  v.  Denison,  11  Wend.  dVZ 
518;  Gay  v.  Johnson,  B2  N.  H.  167.        (affd,  15  id.  G4J. 

2'A  statute  authorizing  a  judgment  3  See,  also,  Raymond  v.  Putnam, 
against  all  joint  debtors,  though  44  N.  H.  IGO;  Gulick  v.  Gulick,  l4 
some  are  not  served  with  process,  N.  J.  L.  578,  582;  Re  Warner,  7 
applies,   though   one  be    an   infant.     Bankr.  Reg.  47;  Rich  v.  Davis,  G  Cal. 

1G3;  Bullock  v.  Hubbard,  23  id.  495. 
153 


PERSONS  COMPOSING  THE  FIRM.  g  151. 

name  does  not  appear  in  the  title  of  the  partnership,  and 
who  is  unknown  to  those  who  lend  credit  to  the  firm.  Ab- 
solute and  universal  or  even  a  studied  secrecy  is  not  essen- 
tial, for  the  connection  of  the  dormant  partner  may  be 
known  to  a  few  or  even  to  many.  He  is  then  no  longer 
dormant  as  to  them,  but  continues  so  as  to  the  rest  of  the 
public.^  If,  however,  the  connection  becomes  generally 
known  in  any  way,  the  dormancy  ceases,  that  is,  secrecy  is 
essential,  independent  of  the  manner  of  exposure;  and  un- 
like holding  out,  to  render  a  third  person  liable  as  partner,  if 
the  other  partners  or  third  persons  divulge  the  connection 
without  the  consent  or  knowledge  of  the  dormant  partner, 
or  it  is  revealed  by  casual  means,  he  is  no  longer  dormant, 
though  the  firm  style  be  the  name  of  another  partner  only.^ 
The  question  of  dormancy  is  one  of  fact  for  the  jury.' 

It  seems  to  have  been  thouglit  that  the  law  of  dormant  partners 
applies  only  to  commercial  partnerships,  and  that  in  real  estate 
matters  a  partnership  cannot  be  in  the  name  of  one  person,  doubt- 
less by  reason  of  the  statute  of  frauds;^  but  this  has  been  justly 
denied  in  toto.^ 

Many  modern  decisions  have  extended  the  doctrine  of  dormant 
partnership  to  cover  cases  where  a  partner  contracts  with  the 
plaintiff,  who  does  not  know  and  has  no  reason  to  suppose  there  is 
a  dormant  partner  or  a  partnership,  and  who  is  therefore  permitted 

1  Metcalf  r.  Officer,  1  McCrary,  325 ;  SGoddard  v.    Pratt,  16  Pick.  412, 

2  Fed.  Rep.  640;  In  re  Ess,  3  Biss.  429;  Metcalf  v.  Officer,  1  McCrary. 

301;  Cregler  v.  Durham,  9  Ind.  875;  325;  2  Fed.  Rep.  640;  North  v.  Bloss, 

Kelley   v.    Hurlburt,    5    Cow.    534;  30  N.  Y.    374,  379;  Cregler  v.   Dur- 

Davis  V.  Allen,  3  N.  Y.  108;  North  v.  ham,  9  Ind.  375;  Hunter  r.  Hubbard, 

Bloss,   30  N.  Y.  374,  3S0 ;  Fosdick  v.  26  Tex.  537. 

Van  Horn,  40  Oil.  St.  459.  <  Smith  v.    Burnham,    3    Sumner, 

2 Evans   v.  Drummond,  4   Esp.  89;  435;  Pitts   v.   Waugli,   4   Mass.    424; 

U.  S.   Bank  v.  Binney,  5   Mason,  176  Patterson   v.   Brewster,  4   Edw.  Ch. 

(aff'd  as  Winshipu.  Bank  of  U.  S.  5  352;  Speake  v.   Prewitt,  6  Tex.   252 

Pet.  529) ;  Boyd  v.  Ricketts,  60  Miss,  (a  dictum). 

62;  Deering   v.    Flanders,    49   N.   H.  5  Chester  u.  Dickerson,  54  N.  Y.  1, 

225;  Clark  v.  Fletcher,  96  Pa.  St.  416;  10;  Benners  v.  Harrison,  19  Barb.  53, 

Benjamin  r.  Covert.  47  Wis.  375,  3S2.  58;   Gray    v.    Palmer,    9    Cal.    616; 

This  was   denied   by  Baldwin,  J.,  in  Brooke  v.  Washington.  8  Gratt.  248 

his  dissenting  opinion  in  Winship  v.  (56  Am.   Dec.    143).     And    see   more 

Bank  of  U.  S.  5  Pet.  529,  574.  fully  in  the  chapter  on  Real  Estate. 

159 


§  152.  NATURE  AND  FORaiATION. 

to  sue  such  partner  alone  -without  joining  his  associates,  they  being 
regarded  as  to  the  plaintiff  in  the  light  of  dormant  partners.' 

§  152.  the  firm  name  not  decisive. —  It  has  been  said 

that  every  person  whose  name  is  not  inclnded  in  the  firm 
style,  or  under  a  general  designation  as  &  Co.,  is  to  be 
deemed  a  dormant  partner;  ^  but  this  obviously  is  quite  too 
sweeping;  it  must  be  intended  that  he  shall  be  unknown, 
and  he  must  also,  of  course,  be  not  generally  known.' 
Otherwise,  if  the  firm  name  were  a  purely  artificial  and 
fictitious  one,  as  The  Citizens'  Bank,  or  The  Warren  Factory, 
all  the  partners  would  be  dormant,  which  is  preposterous; 
for  credit  must  be  given  to  somebody,  and  not  to  a  mere 
name,  and  somebody  must  be  plaintiff,  whereas  a  dormant 
partner  need  not  be  plaintiff.^ 

The  fact  that  the  firm  name  contains  a  collective  word  or 
a  general  designation,  as  &  Co.,  &  Son,  &  Bro.,  does  not  pre- 
vent a  partner  in  it  being  dormant,  if  there  are  more  than 
two;*  but  if  the  firm  consists  of  but  two  and  its  name  haa 
a  collective  expression,  the  legal  presumption  is  that  both 
partners  are  ostensible.^ 

J  De  Mautort  v.   Saunders,  1   B.  &  <  Shamburg  v.  Buggies,  83  Pa.  St. 

Ad.  398;  Chase  v.  Deming,  43  N.  H.  148;  Clark  v.    Fletcher,    90   id.  416, 

274,    where   he  denied    there    were  419.     Yet  see  Bernard  v.  Torrance,  5 

others ;  Clark   v.    Holmes,    3  Johns,  Gill  &  J.  383. 

148;  Hurlbut  v.    Post,   1   Bosw.  28;  ^See  the  facts    in  the  following 

Brown  V.  Burdsal,  29  Barb.  549;  Cook-  cases:  Metcalf  v.  Officer,  1  McCrary, 

iugham  v.  Lasher,  38  id.  656;  2  Keyes,  325 ;  2  Fed.  Rep.  640 ;  Warren  v.  Ball, 

454;    1    Abb.    Dec.   436;   Farwell  v.  37  III.  76;  Kennedy  y.  Bohaiinon,  11 

Davis,  66  Barb.  73;  Worth  v.  Bloss,  B.  Men.  118;  Goddard  v.  Pratt,   16 

30  N.  Y.  374,  380;  Leslie  v.  Wiley,  47  Pick.  412,  428;  Grosvenor  v.  Lloyd,  1 

id.  648.     See§  1052.  Met.  19;  Benton  v.  Chamberlain,  23 

^Leveck  v.    Shaftoe,    2   Esp.    468;  Vt.  711;  Waite  v.  Dodge,  34  id.  181. 

Bank  of  St.  Marys  v.  St.  John,  25  Ala.  See  Hagar  v.  Stone,  20  Vt.  106,  111. 

566;  Mitchell  v.  Dall,  2  liar.  &  Gill,  6  Metcalf  v.  Officer,  1  McCrary,  325; 

159, 172;  Cammack  v.  Johnson,  2  N.  J.  2  Fed.  Rep.  610 ;  Shamburg  v.  Rug- 

Eq.  163;  Mason  v.  Connell,  1  Whart.  gles,  83  Pa.  St.  148,  151.  But  see  facts 

381,385;  Jones  u.  Fegely,  4  Phila.  1;  in   Grosvenor  v.   Lloyd,  1   Met.    19, 

Shamburg  v.  Riiggles,  83  Pa.  St.  148,  where  I.   Stone  and  D.  Stone  were 

150;  Speake  v.  Prewitt,  6  Tex.  252.  partners  as  I.  Stone  &  Co.,  but  the 

sphillips    V.    Nash,    47    Ga.    218;  contract  sued  upon  was  for  rent  of 

Howell  V.  Adams,  68  N.  Y.  314.  premises  rented  to  I.  Stone. 

160 


PERSONS  COMPOSING  THE  FIRM.  §  155. 

§  153.  need  not  abstain  from  participation. —  It  is 

not  essential  to  dormancy  that  the  dormant  partner  should 
wholly  abstain  from  participation  in  the  business.  He  may 
participate,  provided  he  is  not  known  in  it  as  a  partner,^  or 
even  appear  to  the  public  as  a  clerk  or  agent.-  But  the 
active  manager  and  business-man  of  the  firm,  if  a  partner 
and  not  an  agent,  it  was  said,  could  not  be  a  dormant 
partner.' 

§  154.  Powers  of  dormant  partner. —  The  powers  of  the 
dormant  partner  inter  se  must  be  governed  by  the  contract 
between  the  parties.*  In  the  absence  of  express  restriction 
in  the  articles  upon  his  participation  in  the  business,  the 
mere  fact  that  he  is  a  dormant  partner  does  not  of  itself 
place  any  limit  upon  his  general  power  as  a  partner;^  hence 
his  admissions  are  evidence  against  the  firm.''  On  the  death 
of  the  active  partner,  he  may  take  charge  of  the  winding-up 
as  surviving  partner  and  bring  necessary  suits.  ^ 

§155.  Property  may  be  deemed  to  belong  to  ostensible 
partner. —  A  partner  cannot  keep  his  membership  secret  and 
afterwards  be  allowed  to  appear  and  embarrass  creditors 
or  persons  who  have  acquired  claims  on  the  faith  of  the  sole 
ownership  of  the  ostensible  partner.  Thus,  an  execution 
or  attachment  on  a  judgment  against  the  ostensible  part- 
ner, levied  upon  the  property  of  a  dormant  partnership,  will 

1  Bauk  of  St.  Marys  v.  St.  John,  25  ably  not  biud  it ;  citing  Nicholson  v. 
Ala.  566;  Mitchell  v.  Dall,  2  Har.  &  Ricketts,  2  E.  &  E.  524;  Cleasby,  B., 
Gill,  159;  North  v.  Bloss,  30  N.  Y.  374,  in  Holme  v.  Hammond,  L.  R.  7  Ex. 
380 ;  Fosdick  v.  Van  Horn,  40  Oh.  St.  218,  233.  But  see  Rich  v.  Davis,  6  Cal. 
459, 466.  163. 

2  Waite  V.  Dodge,  34  Vt.  181 ;  How  ^Cammack  v.  Johnson,  2  N.  J.  Eq. 
v:  Kane,  2  Pin.  (Wis.),  531 ;  2  Chand.  163.  See  Holme  v.  Hammond,  supra. 
222  (54  Am.  Dec.  152).  '•Kaskaskia  Bridge  Co.  v.  Shannon, 

3  Choteau  v.  Raitt,  20  Oh.  132, 144-5.  6  111.  15. 

Contra,  Bank  of  St.  Marys  v.  St.  ''Beach  v.  Hay  ward,  10  Oh.  455. 
John,  supra.  This  had  been  said  to  be  uncertain  in 
*  If  in  fact  he  has  no  actual  power  Johnsou  v.  Ames,  6  Pick.  330,  334 ; 
and  is  not  known  to  be  a  partner,  his  but  in  the  analogous  case  of  a  limited 
attempt  to  contract  on  behalf  of  the  partnership,  a  surviving  special  part- 
firm,  it  was  said  by  Mr.  Justice  Lind-  ner  can  wind  up,  see  Bates'  Limited 
ley,  Partnership,  238  (d),  would  prob-  Partnership,  j).  197, 
Vol.  I— 11                            161 


§15G. 


NATURE  AND  FORMATION. 


not  be  postponed  to  a  subsequent  levy  by  a  partnership 
creditor.  The  dormant  partner  cannot  assert  a  lien  in  viola- 
tion of  the  appearances  he  has  held  out,  and,  therefore,  the 
partnership  creditors  cannot  do  so  through  him.^  So,  if  a 
person  have  an  account  in  bank,  and  take  in  a  secret  part- 
ner, subsequent  deposits  may  be  applied  by  the  bank  to  prior 
overdrafts.^ 

§  156.  Liability  of  dormant  partner. —  A  dormant  part- 
ner's liability  for  the  debts  of  the  firm  depends  on  the  gen- 
eral principles  of  commercial  law  applicable  to  any  other 

Gumbel 


1  Ex  parte  Norfolk,  19  Ves.  455 ;  £"0; 
parte  Law,  3  Deac.  541 ;  Ex  parte 
Chuck,  8  Bing.  469 ;  French  v.  Chase, 
6  Me.  166;  Lord  v.  Baldwin,  6  Pick. 
348;  Cammacku.  Johnson,  2N.  J.  Eq. 
16:3;  Van  Valen  v.  Russell,  13  Barb. 
590;  Brown's  Appeal,  17  Pa.  St.  480; 
Hillman  v.  Moore,  3  Tenn.  Ch.  454; 
Whitworth  v.  Patterson,  6  Lea,  119, 
123;  How  V.  Kane,  2  Pin.  (Wis.)  531 ; 
2  Chand.  222  (54  Am.  Dec.  152) ;  Cal- 
lender  v.  Robinson,  96  Pa.  St.  454. 
And  see  Talcott  v.  Dudley,  5  111.  427. 
Contra  on  the  ground  that  a  credit- 
or's priority  is  not  because  he  trusted 
the  partnership,  but  because  the 
credit  he  gave  tended  to  increase 
their  funds,  and,  therefore,  they  have 
priority  over  separate  creditors,  al- 
though the  partnership  was  in  the 
name  of  the  ostensible  partner  alone 
and  the  other  was  unknown.  Witter 
V.  Richards,  10  Conn.  37.  Contra,  also, 
Taylor  v.  Jarvis,  14  Up.  Can.  Q.  B. 
128,  holding  that  judgment  on  a  note 
signed  B.  &  Co.,  got  against  B.  alone, 
supposing  there  was  no  partner,  will 
be  postponed  to  a  levy  under  a  sub- 
sequent judgment  against  both  part- 
ners. And  see  Boro  v.  Harris,  13 
Lea,  36.  And  by  statute  in  Missis- 
sippi, if  a  person  trade  in  his  own 
name,  without  &  Co.,  or  other  part- 
nership designation  or  sign,  all  the 


property  is  treated  as  his. 
V.  Koon,  59  Miss.  264. 

2  Allen  V.  Brown,  39  Iowa,  230. 
On  this  principle,  if  the  ostensible 
partner  goes  into  bankruptcy,  it  was 
held  that  the  creditors  of  the  busi- 
ness could  regard  him  as  their  sole 
debtor,  and  elect  to  prove  against  his 
estate  pari  passu  with  his  separate 
creditors,  who  would  then  be  subro- 
gated to  the  claims  against  the  joint 
estate,  or  can  claim  against  the  joint 
estate.  .Ex  parte  Hoilgkinson,  19 
Ves.  294;  Ex  parte  Norfolk,  19  Ves. 
455;  Ex  parte  Cliuck,  8  Bing.  469; 
Ex  parte  Reid,  2  Rose,  84 ;  Ex  parte 
Norfolk,  19  Ves.  455;  Ex  parte  Wat- 
son, 19  Ves.  459.  If  the  ostensible 
partner  becomes  bankrupt,  the  fact 
that  he  was  allowed  to  carry  on  the 
business  as  sole  owner,  if  hona  fide, 
will  not  entitle  his  assignees  in  bank- 
ruptcy to  take  possession  of  the  part- 
nership stock  as  if  he  were  sole 
owner,  regardless  of  the  rights  of  the 
dormant  partnei*,  Reynolds  v.  Bow- 
ley,  L.  R.  2  Q.  B.  474;  Ex  parte 
Hay  man,  8  Ch.  D.  11.  If  the  dormant 
partner  goes  into  bankruptcy  the  as- 
signee cannot  take  rights  in  the 
property  against  the  creditors  which 
the  assignor  could  not,  Talcott  v. 
Dudley,  5  111.  427. 


163 


PERSONS  COMPOSING  THE  FIRM.  §  156. 

undiscovered  principal,  and  he  is  chargeable  when  discovered 
just  as  the  other  partners  are.  The  authority  of  the  osten- 
sible partners  within  the  scope  of  the  business  to  bind  the 
dormant  partner  is  the  same  as  it  is  to  bind  each  other,  or, 
rather,  it  binds  the  whole  firm  alike. ^ 

If  a  loan  has  been  made  by  a  person  who  has  a  secret  part^ier, 
but  is  made  not  only  on  his  individual  credit,  but  for  his  individual 
benefit,  and  not  in  his  business,  so  that  it  is  his  personal  matter 
alone,  the  secret  partner  is  not  affected  by  it.''  If  the  borrowing  part- 
ner declares  the  loan  to  be  for  his  business,  this  declaration  is  con- 
clusive of  the  fact  on  the  principles  stated  in  section  450/ 

If  A.  agree  to  deliver  goods  to  B.  at  a  future  time,  and  before  de- 
livery B.  takes  in  a  secret  partner,  credit,  if  given  at  the  time  of 
the  delivery,  will  be  presumed  given  to  the  firm  though  unknown 
to  A.* 

Cuttle  &  Bordley  bought  goods  of  plaintiff  and  many  others,  and 
shipped  them  to  Gilmore,  at  Baltimore,  under  fictitious  names. 
Gilmore  sold  them  under  the  same  names,  but  being  a  member  of 
the  firm  of  Cuttle  &  Bordley,  he  was  held  liable  to  the  plaintiff  ex 
contractu ^ihowgh.  the  plaintiff  was  ignorant  of  his  existence.* 

K.  was  a  secret  partner  of  E.  in  many  of  his  purchases  of  hogs 
but  not  in  all  of  them,  and  it  was  impossible  to  ascertain  to  what 
extent.  In  an  action  for  the  price  of  a  certain  purchase  made  by 
E.,  in  which  K.  took  an  active  part,  it  was  held  that  such  purchase 
would  be  deemed  one  of  them.* 

Where  fraud  in  the  formation  of  the  partnership  was  perpetrated 

iWinship  V.  Bank  of  U.  S.  5  Pet.  Tucker  v.    Peaslee,    36   N.    H.    167; 

529;  U.S.   Bank  r.  Binney,  5  Mason,  Bromley  v.  Elliot,   38  id.    287,    303; 

176;    Snead    v.    Barringer,    1  Stew.  Johnston  u.  Warden,  3  Watts,   101; 

134;    Parker  v.    Caufield,   37   Conn.  Lea  v.  Guice,  13   Sm.    &  Mar.    656; 

350 ;  9  Am.  Rep.  317 ;  Phillips  r.Nash,  Gavin  v.  Walker,  14  Lea,  643 ;  Brad- 

47   Ga.  218 ;  Holland  v.  Long,  57  id.  shaw  v.  Apperson,  36  Tex.  133 ;  Grif- 

36,  40;  Lindsey  v.  Edmiston,  25   111.  fith  v.  Buffum,  23  Vt.  181;  54  Am. 

359;  Bisel  v.  Hobbs,    6   Blackf.  479;  Dec.  64. 

Gilmore    v.    Merritt,    63    Ind.    535;        2See /n  ?-e  Munn,  3  Biss.  443. 
Scott  V.  Colmesnil,  7   J.  J.  Mar.  416;        3  Winship  v.  Bank  of  U.  S.  5   Pet. 

Kennedy  r.  Bohannon,  11  B.    Mon..  529 ;  Gavin  u.  Walker,  14  Lea,  643. 
118;  St.  Armand  V.  Long,  25La.  Ann.        ^  Johnston    v.    Warden,  3  Watts, 

167;  Bernard  v.  Torrance,  5  Gill  &  101. 

J.    383;  Moale  v.   Hollins,  11  id,  11 ;        *  Gilmore  i?.  Merritt,  62  Ind.  325. 
Richardson  v.   Farmer,   36  Mo.    35;        6  Lindsey  v.  Edmiston,  25  111.  359. 

163 


§  158.  NATURE  AND  FORMATION. 

upon  the  dormant  partner,  and  on  its  discovery  he  rescinded  the 
contract  of  partnership  without  having  received  any  part  of  the 
funds,  he  v?as  not  liable  to  creditors.' 

§  157.  Rationale  of  liis  liability. —  The  liability  of  a  dor- 
raant  partner  was  at  an  early  period  explained  as  founded  on 
his  taking  part  of  the  fund  upon  which  creditors  rely,  or, 
in  other  words,  because  he  receives  part  of  the  profits  or  gets 
the  benefit  of  the  contracts  of  the  ostensible  partner.  This 
reason  has  been  repeated  again  and  again  ever  since  then.^ 
But  where  money  is  borrowed  or  credit  given  for  the  busi- 
ness without  knowledge  on  the  part  of  the  lender  that  there 
is  a  dormant  partner,  the  latter  is  liable,  though  the  borrow- 
ing partner  misapply  the  funds  or  credit  and  no  benefit  is 
received,  the  fund  never  having  come  to  the  use  of  the  firm.' 
Hence  it  evidently  appears  that  the  true  ground  of  hability 
is  that  the  dormant  partner  is  an  undisclosed  principal.*  In 
case  of  a  note  given  in  a  business  transaction  in  the  name  of 
the  ostensible  partner  alone,  where  not  only  the  dormant 
partner  was  unknown,  but  also  the  fact  that  there  was 
a  firm  of  any  kind,  the  dormant  partner  is,  nevertheless, 
liable  if  the  loan  was  for  the  business.  Had  the  firm  been 
known  and  had  a  name,  taking  such  a  note  would  have  been 
an  election  to  take  the  signer  alone,  but  here  there  is  no  op- 
portunity to  elect.  The  name  of  the  signing  partner  will  be 
regarded  as  the  firm  name.* 

DELECTUS  PERSONARUM. 

§  158.  Partnership  being  a  relationship  created  by  agree- 
ment and  founded  upon  and  requiring  a  degree  of  mutual 

1  Mason  r.  Connell,  1  Whart.  381,  529;    Parker  v.   Canfield,    37  Coun. 
and  Wood  v.  Connell,  2  id.  543.  250,  270(9  Am.  Rep.  317);  Grosvenor 

2  Waugh  V.  Carver,  2  H.  Bl.  235 ;  for  v.  Lloyd,  1  Met.  19 ;  Tucker  v.  Pea.s- 
example,  Phillips  v.  Nash,  47  Ga.  218 ;  lee,  3G  N.  H.  167. 

Lea  V.  Guice,  13  Sm.  &  Mar.  656;  Fos-        ^Snead  v.  Barringer,  1   Stew.  134; 

dick  V.  Van  Horn,  40  Oh.  St.  459, 466.  Parker  v.  Canfield,   37  Conn.  250 ;  9 

aWinship  v.  Bank  of  U.  S.  5  Pet.-  Am.  Rep.  317;  Scott  v.  Colmesnil,  7 

229;  Gavin   v.  Walker,  14  Lea,    643.  J.  J.  Mar.   416;  Moale  v.  Hollins,  11 

Contra,  see  Bank   of  Alexandria  v.  Gill  &  J.  11;  Richardson  v.  Turner, 

Mandeville,  1  Cranch,  C.  C.  575.  36  Mo.  35;  Griffith   v.    Buffum,    23 

*Winship  v.  Bank  of  U.  S.  5  Pet.  Vt.  181;  54  Am.  Dec.  64. 

164 


PERSONS  COMPOSING  THE  FIRM.  g  159. 

confidence  not  found  in  any  other  contract  relationship,  and, 
in  fact,  resembling  marriage  in  this  respect,  it  follows  that 
no  person  can  become  a  member  of  a  firm  without  the  con- 
sent of  the  others.  Hence,  no  one  of  the  partners  can  in- 
troduce a  person  into  the  firm,  or  engage  the  firm  in 
another  partnership,  unless  his  copartners  are  willing. 
Hence,  for  example,  the  executors  of  a  deceased  partner 
cannot  become  members  of  the  firm  without  the  consent  of 
the  surviving  partner,  however  imperative  the  directions  of 
the  will  for  the  continuance  of  the  business  may  be.^  If  a 
partner  sells  his  interest  in  the  firm,  the  purchaser  cannot 
be  made  a  partner  by  any  contract  with  his  vendor  alone, 
nor  acquire  any  right  to  interfere  in  the  partnership  affairs.'* 

§  159.  Cannot  make  the  firm  partner  in  other  concerns. — 

On  the  same  principle,  a  partner  cannot  engage  his  firm  in 
enterprises  in  which  a  third  person  is  a  partner  with  him.^ 
Thus,  a  partner  intrusted  with  money  of  the  firm  for  the 
purpose  of  going  into  another  state  and  purchasing  com- 
modities there,  and  who  there  takes  in  a  third  person  as 
partner  in  the  speculation,  and  intrusts  the  money  to  him, 
and  the  new  member  is  robbed  of  it,  is  guilty  of  a  conver- 
sion and  must  account  to  the  original  firm  for  the  money.* 
Or  if,  in  such  case,  the  speculation  is  disastrous,  the  new 
associate  cannot  require  the  firm  to  share  the  loss  with 
him.^  So  an  agent,  having  a  general  power  of  attorney  to 
transact  his  absent  principal's  business,  cannot  embark  the 
principal  or  his  property  in  a  partnership.® 

1  Pearce  t;.  Chamberlain,  2  Ves.  Sr.  Brainard,   38  Barb.    574;    Mason  v. 

33;  Crawford  v.  Hamilton,  3  Madd.  Connell,  1  Whart.  381 ;  McGlensey  v. 

254:  Bray  v.  Fremont,  6  id.  5;  Craw-  Cox,  1  Phila.  387;  Setzer  v.  Beale,  19 

shay  V.  Maule,  1  Swanst.  495 ;  Tatam  W.  Va.  274, 

V.  Williams,  3  Hare,  347.  3  Numerous  authorities  on  the  gen- 

2Jefiferys  v.   Smith,    3  Russ.    158;  eral  proposition  will  be  found  under 

Bank  v.  Railroad  Co.   11  Wall.  024;  Sub- partnership. 

Jones  V.  Scott,  2  Ala.  58;  Meaher  v.  ^Reis  v.  Hellman,  25  Oh.  St.  180. 

Cox,    37   id.  201;  Miller  u  Brigham,  5  Freeman   v.   Bloomfield,  43  Mo. 

50  Cal.  615;  Love  v.  Payne,  73  Ind.  391. 

80;    38    Am.    Rep.    Ill;    Taylor    v.  6  Campbell  v.    Hastings,   29    Ark. 

Penny,    5  La.   Ann.    7;   Merrick  v.  512,  539-40. 

165 


§  161.  NATURE  AND  FORMATION. 

§  1 60.  Consent  in  advance. —  The  consent  to  the  admis- 
sion of  a  new  member  may  be  given  in  advance;  the  time 
or  place  of  it  is  immaterial.  Thus,  if  the  shares  of  partners 
are  by  the  articles  agreed  to  be  transferable,  the  buyer  of  a 
share  is  by  the  agreement  made  a  partner  in  the  seller's 
place.  ^  And  so  if  partners  have  agreed  in  advance  that  any 
one  of  them  may  nominate  his  successor,  the  agreement  is 
valid.-' 

But  a  mere  right  reserved  in  the  articles  to  a  partner,  to 
assign  his  share,  is  not  equivalent  to  an  agreement  to  admit 
the  assignee  to  membership  in  the  firm,  independent  of  the 
acknowledgment  of  the  firm." 

An  article  in  the  partnership  contract  providing  negatively  that 
one  partner  cannot  sell  his  interest  without  giving  his  copartners 
the  first  chance  to  purchase  does  not  imply  a  right  to  introduce  a 
stranger  into  the  firm  upon  their  refusal  to  buy.'' 

§  161.  Ratification  and  acquiescence. —  If  the  other  part- 
ners recognize  the  third  person,  whether  he  be  the  buyer  of 
the  entire  interest  of  a  retiring  partner,  or  a  person  whom  a 
partner  has  assumed  to  introduce  into  the  firm,  or  another 
firm  with  whom  he  has  assumed  to  associate  his  partner, 
as  partner,  and  treat  him  or  them  as  such,  this  ratifies  the 
act  on  the  terms  of  the  old  articles;*  but  not  on  terms  dif- 
fering from  the  articles  and  unknown  to  them.^ 

Mere  silence  or  failure  to  dissent,  after  knowledge  that  a 
partner  has  engaged  the  firm  as  member  of  another  firm, 
is  evidence  from  which  acquiescence  or  ratification  may  be 
inferred;''  or  that  other  similar  contracts  had  previously 
been  recognized.^ 

In  Jones  v.  O'Farrel,  1  Nev.  35i,  Hill  &  James  being  partners 
in  a  particular  kind  of  business,  James  formed  a  partnership  with 

j     1  Fox  V.  Clifton,  9  Bing.  119;  May-  SMeaher  v.  Cox,  37  Ala.  201 ;  Ros- 

.  hevv's  Case,  5  De  G.  M.  &  G.  837.  enstiel  v.  Gray,  112  111.  282. 

2Lovegiove  v.  Nelson,  3  M.  &  K.  CLove  v.    Payne,    73  Ind.    80;   38 

1,  20.  Am.  Rep.  111. 

3  Jefferys  V.  Smith,  3  Russ.  158.  'Tabb  v.  Gist,  1  Brock.  33;  Mason 

*McGlensey  v.  Cox,  1  Phila.  387;  v.  Council,  1  Whart.  381;  Wood  v. 

5  Pa.   L.  J.  203;  1  Am.  Law    Reg.  Connell,  2  id.  542. 

^O.  S.)  34.  «  Buckingham  v.  Hanua,  20  Ind.  110. 

1G6 


PERSONS  COMPOSING  THE  FIRM.  §  163. 

others,  as  OTarrell,  James  &  Co.  in  a  different  business,  being  an 
enterprise  to  improve  HilTs  property.  Hill  was  held  not  bound  to 
notify  the  world  that  he  is  not  a  member  of  the  new  concern. 

§  162.  Effect  inter  se  of  sale  of  a  share.— The  sale  of  a 
share  without  consent  of  the  partners  is  not,  however,  void, 
but  is  a  dissolution;  certainly  if  the  partnership  be  at  will 
(See  §§  570,  571);  and  the  purchaser's  remedy  is  to  demand 
an  accounting.^ 

In  Jones  v.  Scott,  2  Ala.  58,  two  firms,  J.  &  H.  and  S.  &  S., 
owned  a  boat  and  ran  her  in  partnership  as  common  carriers.  S.  & 
S.,  without  the  knowledge  of  J.  &  H.,  sold  out  all  their  interest  to 
the  former  captain  and  clerk,  H.  and  D.,  after  which  a  loss  of  freight 
occurred ;  here,  although  the  owner  of  the  freight  could  have  re- 
covered from  J.  &  H.  unless  he  had  timely  notice  of  tlie  dissolu- 
tion, yet  S.  &  S.  cannot  recover  contribution  from  J.  &  H.,  whom 
they  have  made  associates  of  irresponsible  persons  without  their 
consent. 

§  163.  Partnerships    without    delectns    personarum. — 

There  are  two  exceptions  to  the  right  of  delectus  person- 
arum  —  one  in  the  case  of  joint  stock  companies  with  trans- 
ferable shares  (§  72);  this  is  not  really  an  exception  because 
transfer  without  dissolution  is  designed  and  agreed  upon' 
in  advance  from  the  nature  of  the  association.  The  other 
exception  is  in  case  of  mining  partnerships.  In  this 
peculiar  kind  of  partnership  there  is  no  delectus  j^er son- 
arum,  but  any  partner  may  assign  his  share  without  dis- 
solving the  firm;  nor  is  death  a  dissolution,  and  the  assignee 
has  his  rights  and  remedies  against  the  other  associates.' 
Partnerships  in  mines  may,  however,  as  in  the  somewhat 
analogous  case  of  ships  (§  70),  be  ordinary  partners  if  such 
is  the  agreement.^ 

1  See  §  927.  Nash,  53  id.  540 ;  Campbell  v.  Colo-  ^ 

ZBeutley  v.  Bates,  4  Y.  &  C.  182;  rado    Coal    &    Iron  Co.   9  Col.   60;   * 

Redmayne  v.  Forster,  L.   R.  2  Eq.  Southmayd  v.  Southinayd,   4  Mon- 

467;  Kahn  v.  Central  Smelting  Co.  tana,    100,    113;  Lamar  v.   Hale,  79 

103  U.  S.  641 ;  Skillmau  v.  Lachman,  Va.  147. 

23  Cal.  199;  Duryea  v.  Bart,  28  id.        3jefferys   v.    Smith,  .3  Russ.   158; 

569;  Dougherty  v.  Creary,  30  id.  290;  Crawshay  v.  Maule,  1  Svvanst.  518. 

Taylor  v.  Castle,  42  id.  367  •  Nisbet  v. 

167 


§  164.  NATURE  AND  FORJ^IATION. 

SUB- PARTNERSHIPS. 

§  164.  A  partner  has  a  right  to  contract  with  a  stranger 
on  his  own  account,  whereby  the  latter  shall  participate  in 
his  share  of  the  profits  and  bear  part  of  his  losses.  This 
wheel  within  a  wheel  is  called  for  convenience  a  sub-part- 
nership, and  constitutes  the  parties  to  it  partners,  and  the 
third  pe  rson  is  called  a  sub-partner. 

But  as  between  the  original  partners  the  sub-partner  is 
not  a  member  of  the  firm,^  but  is  only  a  partner  of  the  one 
with  whom  he  contracted.  "-^  The  right  of  delectus  person- 
arum  prevents  any  person  being  made  a  partner  of  others 
without  their  consent,  and  forcing  upon  the  rest  an  asso- 
ciate whom  they  had  not  selected. 

Thus,  where  D.  and  L.  were  partners  carrying  on  several  busi- 
nesses in  different  cities,  and  the  partnership  was  to  apply  to  any 
and  all  real  estate  subsequently  purchased  by  L.,  and  L.  took  in  P. 
as  a  partner  in  the  business  in  one  of  the  cities  as  L.  &  P.,  and  they 
became  possessed  of  considerable  real  estate,  most  of  which  was 
held  in  P.'s  name;  and  D.  recognized  that  L.  had  taken  in  such 
partner,  and  L.  died  and  his  administratrix  claimed  that  P.  sho-uld 
sell  the  real  estate  as  surviving  partner  of  L.  &  P.  and  account  to 
her  for  L.'s  share,  but  D.  claimed  that  P.  must  account  to  him  as 
surviving  partner  of  D.  &  L.  for  L.'s  share,  the  latter  view  was 
held  to  be  the  true  one,  for  P.  holds  the  assets  composing  L.'s  share 
for  the  legal  representative  of  the  original  firm.  ^ 

Where  one  partner  has  taken  in  sub-partners,  another  partner 

1  Nam  socii  mei  socius,  meus  socius  Gray,  4G8;  8  Ara.  Law  Reg.  (N.  S.) 
non  est.     Dig.  lib.  17,  tit.  2,  i?  20.  688;  Shearer  v.  Paine,  12  Allen,  289; 

2  fix'  parte  Barrow,  2  Rose,  252;  McHale  v.  Oertel,  15  Mo.  App.  582; 
Brown  v.  De  Tastet,  Jac.  284;  Bray  Murray  v.  Bogart,  14  Johns.  318; 
V.  Fromont,  6  Matkl.  5;  Ex  parte  7  Am.  Dec.  46G;  Burnett  v.  Snyder, 
Dodgson,  Mont.  &  McAr.  445;  Frost  76  N.  Y.  344  (aff'g,  II  Jones  &  Sp. 
V.  Moulton,  21  Beav.  596;  Fairholm  238);  s.  c.  81  N.  Y.  550;  37  Am.  Rep. 
V.  Marjoribanks.  3  Ross,  L.  C.  097  (a  527;  (rev.  13  J.  &  Sp.  577);  New  laud 
Scotch  case);  Mathewson  v.  Clarke,  tJ.  Tate,  3  Ired.  Eq.  226;  Cliaunel  v. 
6  How.  122;  Bybee  v.  Hawkett,  12  Fassitt,  16  Oh.  166;  Setzer  v.  Beale, 
Fed.  Rep.  649;  8  Sawy.  176;  Fry  v.  19  W.  Va.  274;  Mair  v.  Bacon,  5 
Hawley,  4  Fla.  258;  Meyer  v.  Krohn,  Grant's  Ch.  (Up.  Can.)  338. 

114  111.  574,  581:  Reynolds  v.  Hicks,        3  Shearer  v.  Paine,  12  Allen,  289. 
19  Ind.  113;  Fitch  v.  Harrington,  13 

168 


PERSONS  COMPOSING  THE  FIRM.  §  167. 

who  is  afterwards  compelled  to  pay  a  judgment  against  the  firm 
cannot  sue  the  sub-partners  for  contribution.'  Nor  can  the  sub- 
partner  compel  an  original  partner  with  whom  he  has  not  con- 
tracted to  share  a  loss.^ 

§  166.  Nor  does  the  mere  knowledge,  recognition  and  ap- 
proval of  the  other  partners  of  the  arrangement  between 
one  of  their  number  and  a  sub-partner  constitute  the  latter 
a  member  of  the  firm.' 

Thus,  where  X.  refused  to  become  a  partner  in  S.,  P.  &  Co.,  but 
concurrently  with  the  formation  of  ihat  partnership  entered  into 
an  arrangement  with  two  of  the  partners,  S.  and  P.,  reciting  that 
it  was  deemed  expedient  that  he  should  have  an  interest  in  the  firm 
and  contracting  that  he  should  receive  one-third  of  the  profits  and 
bear  one-third  of  the  loss  of  S.  and  P.'s  share,  in  an  action  by  a 
creditor  against  him  as  a  partner  in  the  original  firm,  it  was  held 
that  he  was  not  such.* 

The  fact  that  the  sub-partner  was  appointed  agent  and  manager 
of  the  firm  is  not  recognition  of  him  as  a  partner,  and  he  is  there- 
fore entitled  to  compensation  as  an  employee  of  the  firni.^  But  if 
all  agreed  that  a  person  should  be  admitted  as  a  partner,  he  is  not 
changed  from  a  partner  to  a  sub-partner  merely  by  a  contract  with 
one  of  the  partners  that  he  should  be  a  partner  in  the  latter's  share, 
unless  the  rest  understood  that  he  had  ceased  to  be  a  partner.* 

§  167.  Nor  has  he  a  right  to  accounting. —  A  sub-partner 
being  a  stranger  to  the  principal  firm  has  no  right  to  compel 
an  accounting  from  it  or  from  any  member  of  it,  except  his 
partner;  ^  hence,  in  a  suit  for  an  accounting  between  the  sub- 
partner  and  his  partner,  the  other  partners  in  the  principal 
firm  are  not  necessary  parties.^ 

1  Murray  v.  Bogart,  14  Johns.  318;  5  Newland  v.  Tate,  3  Ired.  Eq.  226. 
7  Am.  Dec.  466;  Setzer  v.  Beale,  19  6Setzer  v.  Beale,  19  W.  Va.  274, 
W.  Va.  274 ;  Mair  v.  Bacon,  5  Grant's    297. 

Ch.  (Up.  Caru)  338.  "^  Sir  Charles  Raymond's  Case,  cited 

2  Freeman  v.  Bloomfield,  43  Mo.  391.  in  Ex  parte  Barrow,  2  Rose,  252,  255 ; 

3  Shearer  v.  Paine,  12  Allen,  289,  Brown  v.  De  Tastet.  Jacob,  284; 
supra;  Channel  ij.  Fassitt,  16  Oh.  166;  Bray  v.  Fromont,  6  Madd.  5;  Math- 
Setzer  v.  Beale,  19  W.  Va.274,  291-2.  ewson  v.  Clarke,  6  How.  122;  Reilly 

*  Burnett  v.  Snyder,  81  N.  Y.  550;    v.  Reilly,  14  Mo.  App.  62. 
37  Am.  Rep.  527  (rev.  13  Jones  &  Sp.        8  Brown  v.  De  Tastet,  Jacob,  284 ; 
577);  S.  C.  76  N.  Y.  344.  Settembre  v.  Putnam,  30  Cal.  490. 

169 


§  1G9.  NATURE  AND  FORMATION. 

Yet  it  has  been  lield  that  the  other  principal  partners  could  be 
mafic  parties  so  that  the  right  to  know  the  state  of  the  accounts 
and  of  discovery  to  which  the  sub-partner  is  entitled  against  his 
partner  raaj'  be  enforced  through  the  latter.*  And  in  winding  up 
the  principal  firm  it  is  not  error  to  decree  to  a  sub-partner,  whose 
connection  had  been  consented  to,  the  amount  due  him  as  against 
the  other  principal  partner  who  is  a  debtor  to  the  firm."  And  after 
the  dissolution  of  the  principal  firm,  a  sub-partner  of  one  of  the 
members  can  maintain  suit  in  chancery  for  his  proportionate  share 
of  the  adventure,  for  he  is  then  enforcing  no  right  of  the  partner- 
ship, though  he  could  neither  have  compelled  a  dissolution  nor 
have  maintained  this  suit  prior  to  dissolution.^ 

§  108.  Nor  is  lie  a  partner  as  to  creditors. —  Nor  is  such 
sub- partner  liable  as  partner  to  creditors  of  the  firm,  for  he 
does  not  participate  in  the  profits  as  principal,  and  has  no 
community  in  them  or  lien  before  division  to  compel  an  ac- 
counting and  distribution,  nor  a  control  over  the  operations 
of  the  firm,  but  his  claim  is  merely  a  demand  against  the 
partner  with  whom  he  contracted.  The  principles  of  Cox 
V.  Hickman,  etc.,  §§  19-23,  are  conclusive  upon  this.'* 

§169.  Rights  of  the  sub-partners  inter  se. —  Subject  to 
the  foregoing  principles  the  rules  that  govern  the  existence, 
formation,  conduct  and  duration  of  a  sub-partnership  are 
doubtless  the  same  as  those  which  apply  to  any  other  part- 
nership having  a  managing  and  a  sleeping  partner.  Thus, 
a  the  contract  be  to  share  the  profits  and  loss  of  the  inter- 
est of  a  partner,  it  is  a  sub-partnership  and  not  a  contract  of 
sale.*  And  the  duration  of  the  sub- partnership  depends  upon 

1  Chandler  v.  Chandler,  4  Pick.  78.  550;  37  Am.  Rep.  527  (rev.  13  Jones 

2  Rosenstiel  v.  Gray.  112  111.  282.  &  Sp.  577).  and  given  fully  above.  See 

3  Mathewson  v.  Clarke,  6  How.  Drake  v.  Ramey,  3  Rich.  L.  37.  Con- 
122.  And  see  Shearer  v.  Paine,  12  tra,  Baring  v.  Crafts,  9  Mtt.  380; 
Allen,  289,  cited  fully  supra.  Fitch  v.  Harrington,  13  Gray,  46S  (8 

*Fairholmv.  Marjoribanks,  3  Ross,  Am.    Law    Reg.    (N.    S. )    r88^:  and 

Lead.  Cas.  697;  Bybee  v.  Hawkett,  12  dictum  in  Newland  v.  T;  te,  3  Ired. 

Fed.    Rep.  619;  8  Sawy.  170;  Mp}'er  Eq.    226.     But   tliese  cases    are   not 

V.  Krohn,   114   111.    574,    581-2;  Re}^-  founded  on  principle, 
nolds  V.  Hicks,  19  Ind.  113;  Burnett        6  Coleman  u.   Eyre,    43   N.    Y.    38, 

V.    Snyder,   76   N.    Y.     344    (aff.  11  where   tlie    statute    of   frauds    was 

Jones  &  Sp.   238);    S.    C.    81  N.   Y.  urged  ajjainst  an  oral    contract  to 

"  170 


PERSONS  COMPOSING  THE  FIRM.  §  1G9. 

the  contract  between  the  parties  to  it,  and  the  conclu- 
sion does  not  follow  that  it  is  to  last  as  long  as  the  principal 
partnership.^  A  sub-partner  can  enforce  his  contract  with 
his  copartner  without  awaiting  the  settlement  of  tte  original 
firm,  the  amount  of  profits  of  the  latter  being  a  mere  fact 
to  be  proved,- 

In  Richardsori  v.  Dickinson,  6  Foster  (26  N.  H.),  217,  D.  having 
joined  eight  others  in  a  partnership  for  a  trading  and  mining  ex- 
pedition, each  to  contribute  §1,000,  R.  advanced  to  him  §500  to- 
wards his  contribution,  he  agreeing  that  on  Jinal  distribution  of 
the  company's  affairs,  he  and  R.  would  divide  profits  accruing  from 
the  enterprise.  Before  any  profits  were  realized  D,  sold  out  his 
share  to  the  other  members  for  S2,000.  It  was  held  that  R.  was  en- 
titled to  a  share  in  the  purchase  money  as  profits,  for  this  increase 
in  profits  as  to  D.  is  a  final  distribution  as  to  him,  but  he  will  not 
be  held  for  any  more  in  the  absence  of  fraud,  though  a  month  later 
he  could  have  realized  more,  as  did  the  others. 

In  Scott  V.  Clark,  1  Oh.  St.  382,  a  similar  mining  expedition  to 
California,  of  which  C.  became  a  member  by  S.  paying  in  C.'s  con- 
tribution on  an  agreement  that  he  should  have  half  of  all  that  C. 
should  obtain  by  being  a  member.  The  company  was  dissolvable 
at  any  time  by  vote  of  two-thirds  of  the  members,  and  was  subse- 
quently so  dissolved,  and  C.  made  money  on  his  own  account.  It 
was  held  that  S.  was  entitled  only  to  half  the  share  assigned  to  C,  on 
dissolution,  and  not  half  of  the  whole  proceeds  of  C's  trip  to  Cal- 
ifornia, the  latter  being  his  individual  property, 

share  the  profit  and  loss  of  tlie  inter-    598 ;  both  parties  liere  testified  that 
est  of  one  person  in  the  shipment,     there  was  no  limit, 
but  it  was  held  to  be  a  sale.  2  Reilly  v.   Reilly,  14  Mo,  App,  62. 

iFi-ost  V.  Moulton,   21   Beav.   596, 

171 


CHAPTER  VIII. 

THE  FIRM  AS  AN  ENTITY. 

§  170.  Opposing  conceptions  of   a  firm.— There  is  one 

striking  and  very  important  difference  between  the  mercan- 
tile conception  of  a  partnership  and  its  attitude  in  the  eye 
of  the  law.  In  the  commercial  view  a  firm  is  regarded  as  if 
it  were  a  corporation;  it  is  regarded  as  an  entity  or  personi- 
fied being,  distinct  or  apart  from  its  constituent  members. 
The  accountant  makes  each  of  the  partners  a  debtor  or  cred- 
itor to  the  firm  and  not  to  each  other.  Changes  of  member- 
ship are  not  regarded  as  the  ending  of  one  and  tlie  beginning 
of  another  partnership,  but  as  mere  incidents  in  an  un- 
broken continuity.  Business  houses  in  different  places  un- 
der different  names,  but  composed  of  the  same  persons,  as 
where  A,  and  B.  have  an  establishment  in  one  city  as  A.  & 
Co.  and  in  another  as  B.  &  Co.,  are  regarded  as  distinct 
partnerships  with  distinct  debtors  and  creditors,  and  as  debt- 
ors or  creditors  of  each  other,  unlike  the  legal  treatment  of 
the  partners.^ 

§  171.  Originally  a  partnership  was,  and  to  a  very  large 
extent  still  is,  in  its  legal  aspect,  something  very  different 
from  this.  The  common  law  recognized  but  two  kinds  of 
persons,  the  natural  and  the  artificial;  one  created  by  nature, 
the  other  by  the  sovereign;  but  a  conventional  being,  or  the 
attempt  to  create  an  entity  by  private  agreement,  was  un- 
authorized, and  even  its  possibility  not  recognized.  It  was 
not  a  thing  distinct  from  the  members  composing  it,  nor 
was  it  an  entity  at  all,  but  a  mere  expression  of  the  relation 

iln  Bank  of  Toronto  v.  Nixon,  4  legallj^  makes  a  dissolution  and  new 
Ont.  App.  ;54G,  the  court  construed  a  firin  and  not  an  alteration,  regard- 
statute  referring  to  an  alteration  or  ing  tlie  legislature  as  more  probably 
change  of  partnership  to  apply  to  familiar  witli  the  mercantile  than 
the  retirement  of  a  partner,  which     the  legal  view. 

173 


THE  FIRM  AS  AN  ENTITY.  §  172. 

of  certain  persons  to  each  other,  or  description  of  a  pecuhar 
species  of  mutual  agency  of  each  for  all,  in  which  each 
agent  is  also  a  joint  principal,  with  certain  equitable  rights 
over  the  application  of  the  joint  property,  and  the  firm 
name  a  mere  symbol  or  convenient  abbreviation  of  all  the 
names  adopted  for  mutual  purposes.  Eeal  estate  could  not 
be  held  or  conveyed  in  the  firm  name.  The  same  idea  runs 
through  other  parts  of  the  law,  as  in  demands  by  and 
against  the  firm  being  prosecuted  by  and  against  the  part- 
ners; judgments  against  the  partners  being  lions  on  the  real 
estate  of  each;  executions  upon  a  debt  of  the  firm  being 
levied  upon  and  satisfied  out  of  the  separate  property  of  any 
partner  without  resorting  to  the  partnership  assets  in  the 
first  instance;  bonds  and  guaranties  to  a  firm  for  good  con- 
duct of  another,  or  to  a  person  for  the  good  conduct  of  a 
firm,  expiring  on  a  change  of  membership. 

So  a  partner  stealthily  or  forcibly  breaking  into  the  store, 
taking  the  money,  or  appropriating  the  goods,  commits  no 
crime,  neither  embezzlement,  larceny  or  burglary,  nor  even 
a  trespass,  for  the  firm  not  being  a  distinct  proprietor,  these 
acts  relate  to  his  own  property. 

So,  also,  we  find  that  if  one  of  a  firm  has  disqualified 
himself  to  sue,  as  by  having  released  the  debtor,  or  having 
conveyed  to  him,  though  wrongfully,  the  property  sought 
to  be  recovered,  the  firm  is  disabled  to  sue,  because  one  of 
the  plaintiffs  is  seeking  to  repudiate  his  own  act,  whereas  if 
the  firm  were  a  distinct  individuality  it  would  not  be  thus 
affected.^ 

§  172.  On  the  other  hand,  of  the  justice,  convenience  and 
desirability  of  treating  a  firm  as  a  person  there  is  but  little 
doubt,  and  there  are  certain  parts  of  the  law  difficult  to  ex- 
plain except  upon  the  theory  that  a  partnership  is  an  entity. 

1  And  this  has  been  carried  to  such  raon  to  both,  and  the  maker  pays  the 
an  extent  as  to  hold  that  where  a  note  to  A,,  so  that  A.  &  B.  could  not 
note  is  made  to  the  firm  of  A.  &  B.,  sue  upon  it,  B.'s  disqualification  dis- 
and  is  by  them  indorsed  to  the  firm  ables  B.  &  C.  to  sue.  Jacaud  v. 
of  B.  &  C,  B.  being  a  partner  com-    French,  13  East,  317. 

173 


§  172.  NATURE  AND  FORMATION. 

This  appears  on  the  distribution  of  assets  by  a  court  in  cases 
of  death  or  bankruptcy,  awarding  a  priority  to  the  partner- 
ship creditors;  true  this  is  explained  as  based  upon  an  ex- 
tension and  enforcement  of  the  right  of  each  partner  to 
have  the  assets  apphed  so  as  to  reheve  him  from  the  debts; 
but  where  did  he  get  this  right?  It  is  not  a  hen,  for  a  hen 
is  based  upon  possession,  and  ceases  when  that  is  lost, 
whereas  here  is  no  possessory  right,  but  an  equity,  easier 
understood  and  more  consistent  by  regarding  the  firm  as  an 
individual  with  its  environment  of  rights  and  liabiUties,  than 
to  imagine  an  equitable  lien  in  a  partner  that  has  no  counter- 
part elsewhere  in  the  law.  When  we  come  to  the  subject 
of  shares,  in  the  next  chapter,  we  shall  find  a  great  deal  to 
suggest  the  personification  of  the  firm. 

The  law  of  Scotland,'  and  the  systems  of  continental  Europe  and 
the  Roman  law,  regarded  the  firm  as  a  separate  person  capable  of 
suing  and  being  sued  by  its  own  members,  and  having  distinct 
rights  and  interests,  and  such  is  the  law  of  Louisiana.'' 

Equity  also  in  some  respects  treated  a  partnership  as  if  it  were 
distinct  from  its  members,  in  permitting  a  firm  to  sue  another  firm 
with  which  it  had  a  member  in  common  for  a  balance,  although  the 
suit  was  requh-ed  to  be  in  the  individual  names;  and  even  at  law  on 
a  note  or  other  promise  made  by  a  firm  jointly  with  an  individual, 
the  persons  composing  the  firm  were  regarded  as  but  one  promisor 
or  one  surety,  and  inter  se  bound  for  half  the  debt  only.^ 

1  Bell's  Law  of  Scotland,  §  357.  ion  of  profits  on  a  joint  enterprise 

2  Succession  of  Pilcher,  1  South,  between  a  partnership  and  an  individ- 
Rep.  939  (1887),  where  it  is  called  a  ual.  So  in  West  &  Co.  v.  Valley  Bank 
moral  being  distinct  from  the  indi-  6  Oh.  St.  168,  where  by  statute  dam- 
viduals;  a  civil  person  which  has  ages  were  allowed  on  protested  bills 
peculiar  rights  and  attributes,  and  drawn  on  persons  "  without  tlie  ju- 
its  partners  do  not  own  the  property ;  risdiction  of  this  state,"  and  the  firm 
it  is  the  ideal  being  that  owns  it.  of  Taylor  &  Cassilly  had  a  business 
See,  also,  Liverpool,  etc.  Nav.  Co.  r.  house  in  Cincinnati,  where  C.  resided, 
Agar,  14  Fed.  Rep.  615;  4  Woods,  and  another  in  New  Orleans,  where 
201,  of  a  Louisiana  commercial  part-  T.  resided,  each  house  keeping  inde- 
nership.  pendent   accounts,    and  a   bill   was 

3  Chaffee  v.  Jones,  19  Pick.  260 :  Hos-  drawn  on  "  Taylor  &  Cassilly,  New 
mer  y.  Burke,  26  Iowa,  353;  Warner  Orleans,"  and  accepted  by  C.  in  Con- 
V.  Smith,  1  De  G.  J.  &  S.  337,  of  divis-  necticut  for  the  New  Orleans  house, 

174 


THE  FIRM  AS  AN  ENTITY.  §  173. 

§  4.73.  And  judicial  declarations  that  a  firm  is  a  distinct  entity 
are  now  frequently  to  be  met  with. 

Jessel,  M.  R.,  in  Pooley  r.  Driver, L.  R.  5  Ch.  D,  458,  says,  speak- 
ing of  agency  as  a  test  of  partnership,  "you  cannot  grasp  the 
notion  of  agency,  properly  speaking,  unless  you  grasp  the  notion 
of  the  existence  of  the  firm  as  a  separate  entity  from  the  existence 
of  the  partners,  a  notion  which  was  well  grasped  by  the  old  Roman 
lawyers,  and  which  was  partlj'-  understood  in  the  courts  of  equity 
before  it  was  part  of  the  whole  law  of  the  land,  as  it  now  «s." 

In  Walker  v.  Wait,  50  Vt.  668,  it  was  said  that  a  partnership  or 
joint  stock  company  is  just  as  distinct  and  palpable  an  entity  in  the 
eye  of  the  law  as  distinguished  from  the  individuals  composing  it, 
as  is  a  corporation,  and  can  contract  as  an  individualized  and  uni- 
fied party  with  one  of  its  members  as  effectually  as  a  corporation 
with  one  stockholder.  The  only  difference  is  a  technical  one,  that 
plaintiff  as  a  partner  would  be  on  both  sides  of  the  record;  but 
when  the  note  of  a  partnership  to  one  member  is  transferred  to  a 
stranger,  he  can  sue  on  it  at  law. 

Other  similar  declarations,  that  a  partnership  is  a  distinct  thing, 
artificial  being  or  legal  entity  apart  from  the  partners,  are  not  ua- 
frequent.' 

Other  examples  of  an  unconscious  instinct  in  courts  towards 

this  was  held  not  to  be  drawn  on  the  ^  Forsyth  v.  Woods,  11  Wall.  484, 
natural  persons,  but  upon  the  ideal  holding  that  a  promise  by  the  part- 
mercantile  person  as  domiciled  at  ners  collectively  respecting  a  matter 
New  Orleans,  which  is  a  person  not  within  the  scope  of  the  firm's 
"without  the  jurisdiction  of  the  business  is  not  a  promise  of  the  firm 
state."  The  rulings  in  this  case  and  and  should  not  be  declai'ed  upon  as 
twoprecedingonesmay,  however,  be  such.  Bracken  u.  EUsworth,  64  Ga. 
explained  as  merely  carrying  out  the  243,  251 ;  Hemy  v.  Anderson,  77  Ind, 
contract  of  the  parties.  See,  also,  361,363;  Fitzgerald  u.  Grimmell,  64 
City  Bank  of  New  Orleans  v.  Stagg,  Iowa,  261 ;  Cross  v.  National  Bank, 
1  Handy,  382,  illustrating  the  doc-  17  Kan.  336,  340;  Robertson  v.  Cor- 
trine  that  the  domicile  of  the  drawee  sett,  39  Mich.  777;  Roop  v.  Herron, 
determines  the  right  to  damages  on  15  Neb.  73;  Curtis  v.  HoUingshead, 
protest  and  holding  a  billon  a  foreign  14  N.  J.  L.  402,  410;  Faulkner  v. 
house  payable  there,  and  accepted  Whitaker,  15  id.  438;  Meily  y.  Wood, 
by  a  partner  residing  here.  So  71  Pa.  St.  488,  492;  10  Am.  Rep.  719; 
Chenowith  t\  Chamberlin,  6B.  Mon.  and  a  firm  is  spoken  of  as  having  a 
60  (43  Am.  Dec.  145),  of  a  resident  domicile  in  Cameron  v.  Canieo,  9 
drawing  on  his  firm  domiciled  out  Bankr.  Reg.  527;  Pecks  v.  Barnum, 
of  the  state.                                 '  24  Vt.  75,  79. 

175 


§  1  74.  NATURE  AND  FORMATION. 

treating  a,  firm  as  an  entity,  as  far  as  possible,  may  perhaps  IJG  seen 
in  the  effort  to  preserve  insurance  policies  issued  to  a  firm  from  for- 
feiture by  alteration  of  membership  under  clauses  against  alienation 
of  the  property  or  changes  of  title. 

The  statutes  in  England  and  in  many  of  the  code  states  permit- 
ting actions  to  be  brought  by  and  against  firms  in  the  firm  name 
have  made  the  partnership  into  a  person  for  many  purposes  of  pro- 
cedure, even  to  allowing  one  firm  to  sue  another  having  a  meml)er 
in  common  with  it,  and  have  gone  far  towards  fostering  a  further 
recognition  of  the  entity  conception  of  a  partnership.' 

§  174.  How  far  the  original  legal  conception  of  a  firm' 
has  shifted  or  is  shifting,  and  however  desirable  that  some 
of  its  corners  be  rubbed  off,  yet  it  nowhere  is  coterminous 
with  the  accountant's  idea  of  the  firm  as  expressed  above, 
nor  do  the  judicial  expressions  of  its  personification  go  to 
that  length.  This  is  conspicuously  so  in  the  law  of  con- 
veyancing and  procedure.  A  deed  to  or  by  a  firm  in  a  con- 
ventional name  either  wholly  fails  to  convey  the  legal  title, 
or  is  highly  defective.  Actions  must  be  brought,  statutes 
apart,  by  and  against  the  individual  partners,  and  judg- 
ment against  the  individuals  will  roach  their  private  property 
equally  with  the  partnership  property,  subject,  of  course,  to 
any  priorities  separate  creditors  may  have;  and  every  addi- 
tion or  retirement  of  a  member,  though  the  business  be 
continued  under  the  same  name,  ends  the  old  and  forms  a 
new  and  distinct  firm,  so  that  in  an  action,  under  a  statute, 
in  the  firm  name,  causes  of  action  in  favor  of  the  old  and 
new  firms  cannot  be  joined.  Identity  of  style,  name  and 
continuity  of  interest  fuse  the  two  bodies  into  one  as  little 
as  where  a  father  and  son  boar  the  same  name. 

Thus,  where  a  person  is  indebted  to  A.,  B.  and  C,  partners  as  A. 
&  Co.,  and  after  C.  has  retired  and  D.  taicen  his  place  the  debtor 
becomes  indebted  to  the  new  firm  of  A.  &  Co.,  composed  of  A.,  B. 
and  D.,  and  makes  two  notes  to  A.  &  Co.,  one  for  the  former  debt 


1  And  it  has  been  so  called  under  AVagon  Co.  J4  Neb.  106,  108;  Whit- 
6uch  statutes  in  Newlon  v.  Heaton,  man  v.  Keith,  18  Oh.  St.  134,  144. 
43  Iowa,  593,  597 ;  Leach  v.   Milburn     See  Actions  in  firm  name,  §  1059. 

176 


THE  FIRM  AS  AN  ENTITY.  §  175. 

and  one  for  the  latter,  the  two  notes  cannot  be  sued  upon  in  the 
same  action,  for  the  two  payees  are  distinct  concerns.' 

A  mortgage  to  a  firm  to  secure  advances  to  be  made  by  the 
mortgagor  will  not  inure  to  the  holder  of  notes  made  by  the  mort- 
gagor to  a  firm  composed  of  the  original  partners  and  a  new  mem- 
ber;* hence,  also,  a  power  granted  to  trustees  to  loan  money  to  a 
firm  is  not  a  power  to  lend  to  continuing  partners  alter  death  or  re- 
tirement of  one;^  and  so  a  power  to  a  firm  is  terminated  by  a 
partner  retiring.*  And  under  a  statute  that  a  signature  is  admitted, 
unless  its  genuineness  is  specially  denied,  if  an  action  is  brought 
against  D.  and  M.  on  a  note  signed  by  them  as  D.  &  Co.,  a  general 
denial  by  D.  admits  the  genuineness  of  the  signature  and  that  he 
is  a  member,  for  the  firm  not  being  distinct  from  its  members,  the 
averment  is  equivalent  to  alleging  that  each  signed.' 

§  175.  Taxation  of  a  firm. —  The  treatment  of  a  firm  as  an 
entity  or  otherwise,  and  as  having  a  domicile,  frequently  obtains 
in  levying  taxes  and  in  filing  its  chattel  mortgages,  and  here  will 
be  a  convenient  place  for  treating  these  subjects. 

The  doctrine  of  mohilia  sequuntur  personam  makes  personal  prop- 
erty taxable  at  the  residence  of  its  owner  and  not  at  the  place  where 
it  happens  to  be.  Under  the  doctrine  that  the  persons  compos- 
ing a  firm,  and  not  the  firm  itself  as  an  ideal  person,  is  owner,  the 
property  is  listed  and  taxed  where  the  partners  live,  if  they  reside 
in  the  same  taxing  district.®  So  a  tax  on  all  persons  exercising  a 
profession  can  be  levied  upon  each  partner  separately,  although  he 
practices  only  in  a  firm.'  This  rule  of  personal  property  applies  to 
water-craft  belonging  to  the  firm,  for  they  are  migratory  in  charac- 
ter.« 

iDyasr.  Dinkgrave,  15 Ln.  Ann.  503.  8  Cook  v.  Port  Fulton,  106  Ind.  170; 

2Abat  V.  Penny,  19  La.  Ann.  289.  Peabody    v.    County     Comm'ra,    10 

3  Fowler  v.  Reynal,  2  DeG.  &  Sm.  Gray,  97;  In  re  Hatt,  7  Up.  Can.  L. 

749;  3  M.  &  G.  500.  J.  103.     In  Taylor  v.  Love,  43  N.  J. 

<  Jones  V.  Shears,  4  Ad.  &  EI.  833.  L.  143,  it  was  said  that  a  firm  has  uo 

5  Haskins  v.  D'Este,  183  Mass.  356.  domicile  apart  from  the  joint  domi- 

6  Griffith  V.  Carter,  8  Kan.  565  (now  cile  of  the  jjartners,  although  it  may 
changed  by  statute,  see  Swallow  v.  not  be  inaccurate  to  speak  of  its 
Thomas,  15  id.  66) ;  Taylor  v.  Love,  domicile,  where  all  the  partners  live 
43  N,  J.  L.  143.  where  the   business  is  carried    on. 

'Lanier  v.  Macon,  59  Ga.  187;  Wil-  But  if  they  live  in  different  districts 
der  V.  Savannah,  70  id.  760;  48  Am.  the  place  of  business  does  not  fix  the 
Rep.  598.  place  of  taxation  for  all  the  prop- 

VOL.  1  —  13  177 


§  17G.  NATURE  AND  FORMATION. 

If  all  the  partners  live  in  the  same  town  the  assessment  may  be 
either  against  the  partners  individually  or  against  tlie  firm.' 

An  assessment  is  only  made  upon  those  who  are  partners  at  that 
time;  the  fact  that  a  partner  has  retired  without  notice  of  dissolu- 
tion does  not  make  him  liable  to  the  state,  because  levying  a  tax  is  not 
giving  a  credit  but  is  an  arbitrary  imposition;"  though  inter  se  a 
partner  who  has  sold  his  interest  to  his  copartners  has  been  re- 
quired to  reimburse  them  if  they  have  been  compelled  to  pay  taxes 
upon  the  entire  stock  as  an  incumbrance  upon  the  property  sold.^ 
Yet  it  was  held  that  an  incoming  partner  must  pay  the  share  of  taxes 
of  a  retiring  partner,  whom  he  has  bought  out,  though  not  men- 
tioned in  the  schedule  of  liabilities.* 

§  176.  Many  statutes,  however,  treat  the  firm  as  an  independent 
owner  and  tax  it  and  not  the  partners,  and  independently  of  their 
residences."  And  an  assessment  even  of  land  to  the  partnership, 
and  not  to  the  separate  partners,  is  proper.®  Thus,  under  a  statute 
requiring  property  of  a  firm  or  corporation  to  be  listed  by  the  prin- 
cipal accounting  officer,  the  managing  partner,  who  lives  where  the 
business  is  carried  on,  may  properly  list  the  entire  assets  there,  and 
the  other  partner,  who  lived  in  another  county,  need  not  list  his 
interest  at  all.''  So  an  English  joint  stock  company  Avas  held  to  be 
so  far  converted  into  an  artificial  body  as  to  be  taxable  as  a  com- 

erty,  wherever  situated ;  and  where  ner  asking  a  reduction  must  show 
the  firm's  business  and  property  was  the  amount  of  debts  owing  and  his 
in  Jersey  City,  and  one  partner  projDortion  of  them,  State  v.  Par- 
lived  in  Elizabeth  and  the  other  ker,  34  N.  J.  L.  71. 
three  partners  out  of  the  state,  it  2  Washburn  u.  Walworth,  133  Mass. 
was   held  proper  to  tax   the    three  499. 

non-residents  where  the  property  was  '  Evans  v.  Bradford,  35  Ind.  527. 

and  the  other  partner  at  Elizabeth.  <  Wlieat  v.  Hamilton,  53  Ind.  256. 

A  provision  that  a  firm  shall  pay  but  SThibodaux  v.  Keller,  29  La.  Ann. 

one  tax  was  said  to  be  right  in  prin-  50S,    509;  Stockwell  v.    Brewer,    59 

ciple,  and  that  it  would  be  unjust  Me.    286;    Hubbard    v.    Wiusor,    15 

and   unequal    to    tax  each  partner  Mich.    146;     Putman    v.   Fife  Lake 

separately  in  addition,  Savannah  v.  Township,    45    id.    125;    McCoy    v. 

Ilines,  53  Ga.  616  (of  a  firm  of  law-  Anderson,    47  id.    502;   Williams   v. 

yers).  Saginaw,    51   id.    120;    Robinson    v, 

1  Taylor  v.  Love,  43  N.  J.  L.  142;  Ward,  13  Oh.  St.  293;  In  re  Hatt,  7 

State  V.  Parker,  34  id.  71.     And  see  Up.  Can.  L.  J.  103. 

Swallow  V.  Thomas,  15  Kan.  66.     In  6  Hubbard  v.  Winsov,  15  Mich.  146. 

either  case  the  whole  property  must  7  Swallow  v.  Thomas,  15  Kan.  60; 

be  assessed  at  full  value,  and  a  part-  Little  v.  Cambridge,  9  Cush.  298. 

178 


THE  FIRM  AS  AN  ENTITY.  §  177. 

pany.'  An  unincorporated  joint  stock  company,  with  transferable 
shares,  is  a  partnership,  and  taxable  as  such  where  the  business  is 
carried  on,  and  the  shareholder  is  not  taxed  on  its  property.  The 
partner's  interest  is  not  the  market  value  of  his  shares,  but  an  in- 
dividual interest  in  the  assets  as  a  tenant  in  common.'  That  a 
firm  is  taxed  by  a  wrong  name  is  immaterial.^ 

After  dissolution  and  while  the  partnership  is  being  wound  up, 
no  division  of  property  is  worked,  so  that  the  share  of  each  partner 
is  to  be  separately  taxed,  but  it  is  proper  and  legal  to  continue  to 
tax  the  firm  as  before;  it  still  continues  for  the  purpose  of  closing 
up;*  and  so  in  case  of  dissolution  by  death,  it  is  proper  to  assess 
the  firm  in  the  firm  name,  and  the  taxes  are  paid  out  of  the  part- 
nership funds.' 

§  177.  branch  business. —  An  act  requiring  the  property 

to  be  taxed  where  the  business  is  carried  on  means  that  subsidiary 
activities  and  operations  lacking  the  fixed  character  of  an  establish- 
ment having  an  identity  will  be  drawn  to  the  home  establishment. 
Hence,  a  firm  of  lumber  dealers  is  to  be  taxed  at  the  home  office, 
where  it  makes  its  sales  upon  lumber  which  is  sawed  and  shipped 
elsewhere,  and  is  not  sent  to  the  home  establishment  at  all;^  and 
even  though  a  few  sales  were  made  at  the  place  where  the  lumber 
was  sawed;'  and  though  the  partners  themselves  have  temporarily 
gone  to  the  place  where  the  logs  are,  in  order  to  work  upon  them.' 

An  excellent  justification  of  this  policy  is  in  the  fact  that  the 

1  Oliver  v.  Liverpool  &  Loudou  L.  Contra,  Von  Phul  v.  New  Orleans, 
&  F.  Ins.  Co.  100  Mass.  531.     .  24  La.  Ann.  261. 

2  Hoadley  u  County  Comm'rs,  105  SBlodgett  v.  Muskegon  (Mich. 
Mass.    519.     In    Gleason  v.  McKay,  1886),  27  N.  W.  Rep.  686. 

134  Mass.  419,  a  tax  on  partnerships,  ^Putnaan  v.   Fife    Lake    Twp.   45 

to  be  paid  on  the  aggregate  value  of  Mich.  125. 

the  capital  stock,  which  was  held  in  'McCoy  v.  Anderson.  47  Mich.  502. 

assignable  shares,  was  ruled   to  be  8  Torrent  v.  Yager,  52  Mich.   506. 

unconstitutional.     For  as  a  tax  on  In  Barker  v.  Watertown,  137  Mass. 

property  it  is  not  proportional;  but  227,  a  firm  had  three  factories  in  the 

it  is  not  a  tax  on  property,  the  prop-  three  different  cities  of  B.,  N.  and  W. 

erty  not  being  inquired  into;  but  is  Neither  of  the  partners  lived  at  W., 

a  tax  on  the  shares,  which  are  the  nor  were  the  books  kept  there.     The 

property  of  the  individual  members,  goods  made  at  the  factory  at  W. 

and  if  valid  the  legislature  can  select  were  kept  in  an  adjacent  storehouse 

any  business  and  tax  it.    .  until  sold,  the  sales  being  chiefly  on 

*  Lyle  V.  Jacques,  101  111.  644.  orders  received  at  B.,  one  of  the  part- 

*  Oliver  v.  Lynn,    130    Mass.   143.  ners  going  each  day  to  the  three  fao 

179 


§  179.  NATURE  AND  FORMATION. 

books  and  papers,  from  whicli  the  amount  and  value  of  the  prop- 
erty are  ascertainable,  are  generally  kept  at  the  place  of  business, 
and  the  partner's  right  of  review  and  correction  of  the  assessments 
may  not  be  available  elsewhere.' 

Stock  in  trade  in  a  factory,  hired  by  the  firm  in  a  town  othei 
than  where  the  principal  place  of  business  is,  may  be  taxed  at  its 
locality,  as  one  other  than  where  the  owners  reside,  even  if  one 
partner  lives  there,  for  he  is  not  the  owner.* 

If  the  owners  reside  elsewhere  tbe  tax  can  be  assessed  to  the  per- 
son in  charge.' 

§  178.  Licenses. —  A  license  issued  to  or  special  tax  levied  upon 
a  firm,  which  is  required  before  it  can  engage  in  a  particular  busi- 
ness, will  inure  to  a  continuing  partner  after  he  has  bought  out 
his  copartner,  and  he  need  not  pay  again.^  But  where  the  license 
is  issued  to  one  partner  it  was  held  to  be  a  matter  of  personal  con- 
fidence, and  sales  by  his  copartner  were  held  to  be  illegal.* 

§  179.  Filing  of  chattel  mortgages. —  The  filing  of  a  chattel 
mortgage  of  partners  is  like  the  filing  of  a  chattel  mortgage  by 
any  joint  tenants,  and  if  the  latter  must  file  it  at  the  place  of  resi- 
dence of  each  mortgagor,  a  partnership  mortgage  must  be  filed  in 
the  county  or  township  of  each  partner,*  though  the  chattels  are 
in  the  possession  of  one  partner.' 

tories  and  shipping  goods  from  them  Putman  v.  Fife  Lake  Tvvp.  45  Mich. 

to  customers.     It  was  held  that  the  125 ;  McCoy  v.  Anderson,  47  id.  502. 

firm  had  a  "place  of  business"  at  <  United  States  v.  Glab,  99  U.    S. 

W.,  where  goods  were  "employed"  225;  State  v,  Gerhardt,  3  Jones,    L. 

in  its  business  ,and  such  goods  were  178.    Contra,  Harding  v.  Hagar,   63 

taxable  there.     But  merely  keeping  Me.  515. 

property  in   another  place  in  order  5  Webber  v.  Williams,  36  Me.  512. 

that  a  distinct  firm  may  do  work  And   in  U.    S.  v.  Glab,  99  U.  S.  225, 

upon   it   is  not  a  having  a  branch  the  query  was  made  whether  a  li- 

business,    Little     v.     Cambridge,    9  cense  to  a  firm  would  liave  continued 

Cush.  298.     So  if  sent  there  for  sale,  had  the  change  been  by  the  addition 

Fairbanks  v.  Kittridge,  24  Vt.  9.     If  instead  of  the  loss  of  a  partner.  That 

the  principal  place  of  business  is  out  a  firm  can  take  out  a  license  to  sell 

of  the  state,  the  interest  of  a  resident  liquors  was  said  in  Lemons  v.  State, 

partner    is  taxable   here,    Bemis  v.  50  Ala.  130, 

Boston,  14  Allen,  3G6.  ^Briggs    v.   Leitelt,   41   Mich.    79; 

1  McCoy  V.  Anderson,  47  Mich.  502.  Stewart  v.  Piatt,  101  U.  S.  731 ;  Rich 

2  Lee  V.  Templeton,  6  Gray,  579.  v.  Roberts,  48  Me.  548;  50  id.  395. 
» Danville  Co.  v.  Parks,  88  111.  170;  7  Morrill  r.  Sanford,  49  Me.  566. 

Hittinger  v.  Westford,  135  Mass.  258; 

180 


THE  FIRM  AS  AN  ENTITY.  §  179. 

But  in  Hubbardston  Lumber  Co.  v.  Covert,  35  Mich.  254,  where 
the  statute  required  chattel  mortgages  to  be  filed  where  the  owner 
resides,  and  if  he  is  a  non-resident,  then  where  the  property  is,  it 
is  said  that,  for  many  purposes,  a  firm  is  a  distinct  concern,  and 
possesses  a  sort  of  individuality.  It  has  for  some  purposes  an  ideal 
existence.  Its  creditors  and  debtors  differ  from  those  of  individuals, 
A  member  may  be  creditor  or  debtor  of  it.  A  member  is  agent  of  it 
but  not  of  individual  interests.  It  may  be  taxed  and  sometimes 
sued  in  firm  name.  It  may  have  a  local  abiding  place.  Hence 
a  firm  chattel  mortgage  filed  where  the  firm  has  its  residence  is 
sufficient  if  executed  by  all  the  partners,  all  of  whom  live  in  the 
state,  but  not  where  the  business  seat  is;  it  is  well  filed  where  they 
live.  But  if  executed  for  the  firm  by  a  resident  partner,  and  the 
other  partner  is  a  non-resident,  and  the  resident  partner  lives  where 
the  firm  is,  it  is  properly  filed  there,  though  some  of  the  property 
is  in  another  part  of  the  country.^ 

The  execution  of  a  chattel  mortgage  by  one  partner  belongs  to 
the  subject  of  Powers.' 

1  Where  chattels  of  one  partner  are  being  used    as   before,    this    is  no 

used  by  the  firm  and  the  partner  mort-  change  of  possession  to  protect  the 

gages  them,  and  it  is  agreed  between  unfiled  mortgage  against  other  cred- 

the  mortgagor  and  mortgagee  that  itors.     Mere  words  are  no  change, 

the  other  partner  shall  retain  posses-  Porter  v.  Parmley,  53  N.  Y.  185. 
•ion  for  the  mortgagee,  the  property        2  g  407. 

181 


CHAPTER  IX. 

INTEREST  OR  SHARE  OF  EACH. 

§  180.  Nature  of. —  A  partner  has  no  specific  interest  in 
any  particular  chattel  or  asset,  or  part  of  the  property  of  the 
firm;  his  only  interest  is  in  a  proper  proportion  of  the  sur- 
plus of  the  whole  after  payment  of  debts,  including  the 
amounts  due  the  other  partners.* 

From  this  nature  of  a  share  and  in  view  of  the  delectus 
personaruin,  it  follows  that  upon  the  death  of  a  partner 
the  surviving  partner  alone  can  wind  up  the  business,  and 
the  administrator's  right  is  to  require  him  to  do  so;  and 
80  in  case  of  bankruptcy  of  a  partner,  whereby  he  is  disquali- 
fied to  act,  the  solvent  partner  has  the  right  to  wind  up, 
and  the  assignee  gets  the  bankrupt's  surplus,  though  in  case 
of  bankruptcy  the  assignee  may  have  to  be  a  co-plaintiff  in 
actions.  So  in  execution  sales  of  the  interest  of  a  partner, 
only  a  share  in  the  surplus  passes.  And  so  if  a  partner  sells 
his  interest  to  his  copartners,  claims  standing  against  him 
on  the  books  are  extinguished,  for  they  are  not  debts,  but 
items  of  the  general  account.^ 

§  181,  Presumed  equality  of. —  In  the  absence  of  agree- 
ment or  evidence  as  to  the  proportions  of  profit  and  loss  to 
be  divided  between  the  partners,  the  presumption  is  in  favor 

1  Farquliar  v.  Haddeu,  L.  R.  7  Cli.  id.  264.    Many  other  cases  to  this  ef- 

App.    1 ;   Filley  v.  Phelps,  18  Conn,  feet  will  be  found  under  the  subjects 

294;  Trowbridge  V.  Cross,  117111.  109;  of  Exemptions,  Executions  against 

Bopp  V.  Fox,  03  id.    540;  Ferry   v.  one  Partner  and  Retiring  Partners, 

Holloway,  6  La.  Ann.  265 ;  Douglas  v.  and  Incoming  Partner. 
Winslow,  20  Me.  89 ;  Fern  v.  Cush-        2  Hence  it  was  even  queried,  if  all 

ing,  4  Cushing,  357;  Tobey  v.  McFar-  the  partners  lived  in  another   state 

lin,    115  Mass.   98;  Schalck  v.   Har-  and  the  place  of  business  was  there, 

nion,  6  Minn.  265,  269;  Bowman  v.  wliether  the  interest  of  one  partner 

O'Reilly,    31    Miss.    261 ;    Gaines    v.  could  be  said  to  exist  in  this  state  so 

Coney,  51  id,  323;  Buffum  v,  Seaver,  as  to  form  the  subject  of  an  attach- 

16  N.  H.   160;  Mabbett  v.  White,  12  nient  here.     Dow  v.  Say  ward,  14  N. 

N.  Y.  442,  455 ;  Staata  v.  Bristow,  73  H.  9,  13. 

183 


INTEREST  OR  SHARE  OF  EACH. 


§1S1. 


of  the  equality  of  the  shares.  It  makes  no  difference  that 
one  partner  has  contributed  all  the  capital  and  the  other 
only  services  or  skill,  for  the  court  cannot  set  a  proportion- 
ate value  upon  these  respective  contributions.  The  value  of 
each  partner  depends  on  many  things  besides  his  capital, 
such  as  skill,  industry,  reputation,  connection,  and  the  like; 
and  the  silence  of  the  parties  naturally  signifies  an  agreed 
and  conceded  equality.  It  follows  from  the  same  reasons 
that  if  the  contribution  to  capital  is  in  unequal  proportions, 
the  profits  and  losses  are  not  presumably  to  be  shared  in  the 
ratio  of  the  shares  of  capital,  but  equally.^ 

While  losses  are  presumed  to  be  borne  in  the  same  ratio 
as  profits,^  there  is  no  positive  rule  to  that  effect.''    If  the 


iFarrar  v.  Beswick,  1  Moo.  &  R. 
527 ;  Robinson  v.  Anderson,  20  Beav. 
98 ;  7  DeG.  M.  &  G.  239,  of  attorneys 
employed  together  in  one  case; 
Collins  V.  Jackson,  31  Beav.  645; 
Webster  v.  Bray,  7  Hare,  159 ;  Stuart 
V.  Forbes,  1  Macn.  &  G.  137 ;  1  Hall 
&  Tw.  4G1 ;  Copland  v.  Toulmin,  7 
CI.  &  Fin.  349;  Stewart  v.  Forbes, 
1  Hall  &  Tw.  461 ;  1  Macn.  &  G.  137 ; 
Brown  v.  Dale,  9  Ch.  D.  78 ;  Turnip- 
seed  V.  Goodwin,  9  Ala.  372;  Donel- 
son  V.  Posey,  13  id.  752;  Stein  v. 
Robertson,  30  id.  286;  Brewer  v. 
Browne,  68  id.  210;  Griggs  v.  Clark, 
23  Cal.  427 ;  Roach  v.  Perry,  16  111. 
87;  Farr  v.  Johnson,  25  id.  522; 
Remick  v.  Emig,  42  id.  342,  348; 
Taft  V.  Schwanib.  80  id.  289;  Flagg 
V.  Stowe,  85  id.  164;  Ligare  v.  Pea- 
cock, 109  id.  94;  Moore  v.  Bare,  11 
Iowa,  198;  Honore  v.  Colniesnil,  1 
J.  J.  Mar.  506;  Pirtle  v.  Penn,  3 
Dana,  247  (28  Am.  Dec.  70);  Conwell 
V.  Sandidge,  5  id.  210;  Lee  v.  Lash- 
brooke,  8  id.  214;  Wolfe  v.  Gilmer,  7 
La.  Ann.  583;  Northrup  v.  McGill, 
27  Mich.  234;  Randle  v.  Richardson, 
53  Miss.   176;  Henry  v.  Bassett,   75 


Mo.  89;  Ratzer  v.  Ratzer,  28  N.  J, 
Eq.  136;  Buckingham  v,  Ludlum, 
29  id.  345 ;  Gould  -y.  Gould,  6  Wend. 
263;  Ryder  v.  Gilbert,  16  Hun,  103; 
Taylor  v.  Taylor,  2  Murph.  (N.  Ca.) 
70;  Jones  v.  Jones,  1  Ired.  Eq.  332; 
Worthy  v.  Brower,  93  N.  Ca.  344; 
Knott  V.  Knott,  6  Oregon,  142,  150; 
Christman  v.  Baurichter,  10  Phila. 
115;  Whitis  v.  Polk,  36  Tex.  602. 

According  to  the  Scotch  law  it  is 
not  necessarily  presumed  that  part- 
ners share  equally,  but  is  a  question 
for  the  jury,  considering  all  the  cir- 
cumstances, including  good  will, 
skill,  capita],  labor,  etc.,  what  should 
be  the  share  of  profit  and  loss. 
Thompson  v.  Williamson,  7  Bligh. 
N.  R.  432.  And  so,  also,  by  two 
earlier  English  cases,  Peacock  v. 
Peacock,  2  Camp,  45;  Sharpe  v. 
Cummings,  2  Dow  &  L.  504.  And 
was  doubted  in  Towner  v.  Lane,  9 
Leigh  (Va.),  262. 

2  See,  for  example,  Flagg  v.  Stowe, 
85  111.  164;   Whitcomb  v.  Converse, 

119  Mass,    38,    42;   Moley  v.  Brine, 

120  id.  324. 

3  lie  Albion  L.  Ass.  See.  16  Ch.  D.  83. 


183 


§  182.  NATURE  AND  FORMATION. 

articles  or  agreement  are  silent,  the  books  and  accounts  are 
as  conclusive  as  a  regular  contract,  and  even  more  so,  for 
the  contract  may  be  changed  by  parol.  ^ 

This  doctrine  must  be  kept  distinct  from  divisions  of  cap- 
ital and  repayment  of  capital  on  winding  up.  It  relates 
only  to  dividing  j^rofit  and  loss,  but  does  not  alter  the  treat- 
ment of  capital,  as  if  a  debt,  to  be  first  paid  before  profits 
are  divided,  and  in  case  of  i?npairment  to  be  repaid,  less  the 
equalization  of  losses. 

§  182.  examples. —  And  if  the  partnership  is  composed 

of  an  individual  and  a  firm  of  two  persons,  the  presumption  of 
equality  will  give  the  firm  half  the  profits  as  constituting  one 
partner,  and  to  each  member  of  it,  one-half  of  its  half.* 

Where  one  furnished  the  manuscript  of  a  book  and  the  other 
the  materials  and  labor  to  print  and  bind  it,  they  were  held  to  be 
presumptively  equal  partners  in  the  gross  and  not  the  net  profits.' 

Where  capital  was  contributed  in  unequal  proportions,  and 
profits  and  loss  were  to  be  divided  in  the  same  proportion,  and  at 
the  expiration  of  the  partnership  it  was  renewed,  with  the  excep- 
tion that  each  partner's  interest  should  be  equal,  this  means 
equality  in  the  ownership  of  the  capital  as  well  as  shares  of  profit 
and  loss,  and  parol  evidence  of  a  different  intention  is  not  admis-  • 
sible.* 

Under  articles  by  which  each  of  two  partners  should  use  due 
diligence  in  procuring  logs  for  their  mill,  and  bear  equal  expense 
in  procuring  them,  each  does  not  contract  to  furnish  half  the  logs, 
but  to  pay  half  the  expenses.* 

Where  partners  engage  the  partnership  funds  in  an  outside  spec- 
ulation the  profit  or  loss  is  to  be  shared  in  the  same  proportion  as 
they  share  in  their  other  business.* 

Where  the  articles  of  partnership  between  two  partners  require 
money  to  be  advanced  in  equal  proportions,  and  profits  to  be  di- 

1  See  §211.  sPirtle  v.  Penn,  3  Dana,  247  (88 

2  Warner  v.  Smith,  1  De  G.  J.    &    Am.  Dec.  70). 

S.  337;  Honore  v.  Colmesnil,  1  J.  J.        <  Taf  t  v.  Schwamb,  80  111.  289. 
Mar.    506;    Conwell    v.   Sandidge,  5        » Pence  u  McPherson,  30  Ind.  66, 
Dana,   210;  Turnipseed  v.  Goodwin,        6  Storm  v.  Cumberland,  18  Grau^  ^ 
9  Ala'.  372.  Ch.  (Up.  Can.)  245. 

184 


INTEREST  OR  SHARE  OF  EACH.  §  183. 

vided  in  the  proportion  that  the  interests  of  each  bear  to  the  total 
amount  paid  in,  and  on  accounting  the  defendant  claimed  more 
than  half  profits  because  he  had  put  in  more,  the  complainant  can 
show  that  he  hnd  desired  and  offered  io  put  in  an  equal  amount, 
but  defendant  had  excluded  him  from  so  doing  and  from  informa- 
tion as  to  the  amount  so  necessary  to  equalize  the  contributions, 
for  the  provision  in  the  articles  was  intended  to  reach  a  wilful  de- 
fault, which  did  not  exist  here,  and  if  one  increased  his  amount 
the  other  would  not  be  in  default  until  notice  thereof  and  demand 
for  contribution;  and  a  partner  has  no  right  to  pay  expenses  out  of 
his  own  pocket  when  the  firm  is  able  to  pay,  and  thus  increase  his 
interest,  for  each  has  the  right  to  have  the  product  sold  to  pay 
expenses.' 

Where  a  partner,  in  partnership  five  years  with  his  two  sons, 
put  in  S  1,000  for  himself,  and  each  son  was  to  put  in  $500,  their 
payments  to  be  made  by  deduction  of  that  amount  from  their  in- 
heritance in  his  estate,  and  in  case  of  dissolution  before  five  years 
each  son  is  to  be  entitled  to  but  $100  for  each  year,  in  such  case,  if 
the  firm  is  not  dissolved  before  the  end  of  the  term,  the  $500  of 
each  son  is  to  be  considered  an  advancement  bj'  the  father  and  as 
if  paid  in  by  the  sons,  and  the  profits  or  increase  was  held  divisible 
in  the  proportion  of  $500  to  $2,000,  but  in  case  of  dissolution 
before,  each  son  was  to  share  in  the  increase  in  the  proportion  of 
$100  for  each  year.* 

Where  defendants  formed  a  business  connection  with  parties  in 
Porto  Rico,  agreeing  to  give  them  one-fourth  of  the  business,  and 
afterwards  formed  a  partnership  with  plaintiffs,  agreeing  that 
plaintiffs  should  be  one-third  interested  in  shipments  to  Porto 
Rico,  and  the  defendants  are  to  represent  the  other  two-thirds,  it 
was  held  that  the  plaintiff's  are  entitled  to  one-third  of  the  whole 
amount,  and  not  one-third  of  three-quarters  only.' 

§  183.  Mortgage  or  sale  of  a  share. —  As  the  share  of  a 
partner  is  merely  a  right  to  a  proper  proportion  of  the  sur- 

1  Fulmer's  Appeal,  90  Pa.  St.  143.     purchase,  and  the  cattle  are  sold  for 

2  Frederick  r.  Cooper,  3  Iowa,  171.     |1,120,  B.  is  entitled  to  one-third  and 
'Pond    V.    Clark,    24    Conn.    870.     not  one-half  of  the  proceeds,  since 

Where  A.  has  $1,000  of  the  funds  of  the  funds  belonged  to  A.,  B.  &  C. 
the  firm  of  A.,  B.  &  C,  and  furnishes  The  other  two-thirds  may  be  treated 
it  to  buy  cattle  for  himself  and  B.,  as  A.'s  as  between  him  and  B.  Bul- 
C.    disclaimino-  any   interest  in  the    lock  v.  Ashley,  90  111.  103. 

185 


§  183.  NATURE  AND  FORMATION. 

plus,  after  payment  of  partnership  debts  and  adjustment  of 
balances,  it  follows  that  the  assignee  or  mortgagee  of  the 
interest  of  one  partner  takes  subject  to  all  debts  and  liabili- 
ties, for  he  can  get  no  greater  right  than  his  assignee  could 
convey.  The  sale  by  a  partner  of  his  interest  in  the  firm  to 
a  third  person  has  no  effect,  as  we  have  seen,  to  entitle  the 
assignee  to  admission  into  the  firm,  by  reason  of  the  delectus 
personarum}  And  such  sale,  at  least  in  a  partnership  at 
will,  dissolves  the  firm. 

Such  sale  is,  however,  not  entirely  inoperative,  for  it  is 
effectual  to  carry  the  right,  after  winding  up,  to  such  share 
of  surplus  as  would  otherwise  have  been  due  to  the  partner 
in  preference  to  other  and  unsecured  individual  creditors.^ 
Indeed  it  has  been  said  that  the  buyer  becomes  a  tenant  in 
common  with  the  other  partners.  Yet  any  analogy  to  a 
tenancy  in  common  is  fanciful  or  rather  erroneous.  There 
is  no  tenancy  in  common  thereby  created  in  the  property  or 
right  to  any  aliquot  part  of  it;  except  of  course  in  a  min- 
ing partnership.  The  other  partners  have  the  sole  right  of 
possession  and  of  winding  up,  and  a  complete  power  of  dis- 
position. The  buyer  or  mortgagee  of  the  share  of  one  part- 
ner has  a  mere  right  to  receive  the  share  of  a  surplus  which 
would  otherwise  have  been  allotted  to  his  assignor,  and  his 
right,  therefore,  is  a  jus  in  personam  and  not  Sijiis  in  rem.^ 

1  §  158.  rights  nor  transfer  to  him  the  newly 

2  Thompson  v.  Spittle,  103  Mass.  acquired  property.  In  Mosely  v. 
207,  and  cases  cited  in  this  chapter  Garrett,  1  J.  J.  Mar.  (Ky.)  213,  it 
generally.  was  held  that  if  one  partner  mort- 

3  The  assignee  was  distinctly  held  gages  his  interest  to  secure  inrlorsers, 
not  to  be  a  tenant  in  common  in  and  procure  fuudj  for  the  firm,  the 
Bank  v.  Railroad  Co.  11  Wall.  624;  other  partner  could  not  divert  the 
Donaldson  v.  Bank  of  Cape  Fear,  1  fund  mortgaged  from  the  contem- 
Dev.  Eq.,  103  (18  Am.  Dec.  577).  In  plated  purposes  and  apply  it  to  other 
Thompson  v.  Spittle,  103  Mass.  207,  partnersliip  debts.  In  Jones  v. 
210,  it  was  said  that  a  mortgage  by  Neale,  2  Patt.  &  H.  (Va.)  339,  it  was 
one  partner  of  Ids  interest  in  a  firm  held  that  a  conveyance  by  one  part- 
and  its  property  could  not  take  ner  to  secure  a  partnership  creditor 
effect  upon  subsequently  acquired  would  pass  a  good  title,  both  in  law 
property,  and  that  the  purcliase  of  and  equity,  to  his  individual  moietj-. 
Other  goods,  and  mingling  them,  superior  to  the  claims  of  other  part- 
could  neither  divest  the  mortgagee's  nership  creditors;  but   not  so  of  a 

isa 


INTEREST  OR  SHARE  OF  EACH. 


§184. 


§  1 84.  Hence  a  partner  cannot  give  to  his  individual  cred- 
itor a  specific  lien  upon  partnership  property  or  upon  his 
interest  in  it  to  overreach  the  general  lien  of  liis  copartners 
or  the  priority  of  tlie  partnership  creditors.  Thus,  if  a  part- 
ner mortgage  or  sell  his  interest  in  the  assets,  the  mortgagee 
or  assignee  is  entitled  only  to  the  share  of  the  partner  in 
the  surplus  after  satisfaction  of  all  partnership  claims.^ 
And  though  the  mortgage  be  upon  partnership  real  estate.^ 
So  if  he  conveys  it  absolutely.'  So  a  chattel  mortgage  by  a 
partner  in  his  own  name  passes  no  title  in  the  property.*     So 


conveyance    to    secure    a    separate 
creditor;  but  see  §  548. 

1  Smith  V.  Parkes,  16    Beav.    115; 
Fox  V.  Hanbury,  Cowper,  445 ;  West 
V.  Skip,    1  Ves.    Sr.    239;  Young  v. 
Keighly,   15  Ves.     557;    Bentley  v. 
Bates,    4    Younge    &    C.    183,    190; 
Warren  v.  Taylor,  60  Ala.  218;  Chase 
V.  Steel,  9  Cal.  64 ;  Burpee  v.  Bunn, 
22  Cal.  194 ;  Jones  v.  Parsons,  25  id. 
100 ;  Sheehy  v.  Graves,  58  id,  449 ;  Fil- 
ley  V.  Phelps,  18  Conn.  294;  Beecher 
V.    Stevens,  43  Conn.    587;    Sutlive 
V.  Jones,  61  Ga.  676;  Shaw  v.  McDon- 
ald, 21  Ga.  395;  Smith  u.  Andrews. 
49    111.    28;    Kistner   v.    Sindlinger, 
33  Ind.  114;   Smith  u.  Evans,  37  Ind. 
536;  Conant  v.  Frary,  49  id.  530;  Henry 
V.  Anderson,  77  id.    381 ;    Deeter  v. 
Sellers,  102  id.   458;  Fargo -u.  Wells, 
45  Iowa,   491  {dictum);    Hodges    v. 
Holman,  1   Dana,    50;  Whitmore   v. 
Shiverick,    3   Nev.    2S8;    Lovejoy  v. 
Bowers,  11  N.  H.   404;  Receivers  of 
Mechanics'  Bank  v.  Godwin,  5  N.  J. 
Eq.  334;  Matlacku  James,  13  id.  126; 
Hiscock  V.  Phelps,  49  N.  Y.  97,  103-4; 
Tarbell  v.  West,  86  id.  280;    Tarbel 
V.     Bradley,    7  Abb.     N.    Cas.    273; 
Williams  v.  Lawrence,  53  Barb.  320, 
324;    Bank    of  N.    Ca.    v.  Fowle,   4 
Jones'  Eq.  8 ;  Ross  v.  Henderson,  77 


N.  Ca.  470 ;  Burbank  v.  Wiley,  79  id. 
501 ;  Bank  v.  Sawyer,  38  Oh.  St.  339 ; 
Hunt  V.  Smith,  3  Rich.  Eq.  465; 
White  V.  Dougherty,  Mart.  &  Yer. 
(Tenn.)  309;  Williams  v.  Love,  2 
Head,  80;  Stebbins  v.  Willard,  53 
Vt.  665;  Jones  v.  Neale,  2  Patt.  &  H. 
(Va.)339. 

2  Jones  V.  Parsons,  25  Cal.  100; 
Beecher  v.  Stevens,  43  Conn.  587; 
Whitmore  v.  Shiverick,  3  Nev,  288; 
Tarbell  v.  West,  86  N.  Y.  280 ;  Tarbel 
V.  Bradley,  7  Abb.  N.  Cas.  273;  Miller 
V.  Proctor,  20  Oh.  St.  442 ;  Bank  u 
Sawyer,  38  Oh.  St.  339. 

3  Bank  v.  Railroad  Co,  11  Wall.  624; 
Burpee  I'.  Bunn,  22  Cal.  194;  Marks 
V.  Say  ward,  50  id.  57  {dictum) ;  Yale 
V.  Yale,  13  Conn.  185;  33  Am,  Dec. 
393 ;  Matlack  v.  James,  13  N,  J,  Eq. 
126;  Rosenstielv.  Gray,  112  III.  282; 
Holland  v.  Fuller,  13  Ind.  195;  Donald- 
son V.  Bank  of  Cape  Fear,  1  Dev,  (N, 
Ca.)Eq.  103;  Rodriguez u.  Heflfernan, 
5  Johns.  Ch.  417;  Ross  v.  Hender- 
son, 77  N,  Ca.  170;  Boyce  v.  Coster, 
4  Strob,  (S,  Ca,)  lEq,  25;  Williams  v. 
Love,  2  Head,  80. 

4  Clark  V.  Houghton,  12  Gray,  38; 
Deeter  ?;.  Sellers.  102  Ind.  458;  Smith 
V.  Andrews,  49  111.  28;  Yale  v.  Yale, 
13  Conn,  185;  33  Am.  Dec.  393. 


187 


§  185.  NATURE  AND  FORMATION. 

of  the  lien  upon  partnership  real  estate   of  a    judgment 
against  one  partner.' 

If  the  conveyance  by  a  partner  of  liis  interest  be  a  sale  of  real  es- 
tate, of  which  the  legal  title  is  in  the  partners  as  tenants  in  com- 
nLon,  the  vendee  necessarily  gets  the  legal  title  of  a  specific  undivided 
share,  and  in  an  action  by  him  to  recover  this,  the  partners  must 
plead  that  it  is  the  propertj^  of  an  unsettled  partnership  or  that  the 
seller  was  indebted  to  the  firm,  making  equitable  defense  in  an 
action  at  law.* 

In  Beecher  v.  Stevens,  43  Conn.  587,  by  an  agreement  of  both 
partners,  one  sold  out  his  interest  in  the  firm  to  a  third  person  in 
order  that  the  latter  might  form  a  partnership  with  the  other,  and 
deeded  to  him  an  undivided  half  of  real  estate  constituting  part  of 
the  assets,  the  buyer  mortgaging  it  back  to  the  retiring  partner  to 
secure  the  purchase  price  and  payment  of  his  share  of  debts,  and 
the  new  firm  afterwards  made  mortgages  to  subsequent  creditors. 
The  former  mortgage  was  held  to  be  the  prior  lien  and  not  to  be  a 
mortgage  of  individual  interest  on  mere  surplus;  nor  is  it  a  mort- 
gage on  the  interest  of  the  new  member  in  the  new  firm,  for  then 
the  equity  of  later  creditors  could  have  been  asserted  against  it  by 
the  other  partner,  but  is  a  mortgage  on  the  interest  of  the  old  n\em- 
ber  in  the  old  firm. 

In  Maxwell  v.  Wheeling,  9  W.  Va.  206,  M.,  of  M.  &  McK.,  part- 
ners, conveyed  all  his  interest  in  the  firm  to  S.  to  secure  an  indi- 
vidual debt  due  to  a  third  person.  S.  sold  the  property  under  the 
trust  at  auction,  and  McK.  bought  it,  paying  S.  in  cash.  Firm 
creditors,  after  this,  garnished  the  cash  in  S.'s  hands  as  partner- 
ship property.  It  was  held  to  be  M.'s  individual  money,  and  the 
creditors  must  look  to  the  property  in  McK.'s  hands,  for  M.  could 
sell  to  S.  only  his  own  interest,  that  is,  his  share  after  the  creditors 
were  paid,  and,  therefore,  did  not  sell  partnership  property. 

§  185.  Subject  to  sul)se(iueiit  firm  debts. —  But  his  inter- 
est, mortgaged  or  sold,  is  subject  not  only  to  existing  lia- 

1  Johnson  v.  Rogers,  15  Bankr.  Reg.  an  assignment  by  one  partner  of  his 
1 ;  5  Am.  Law  Rec.  536.     See  §   186.     interest  in  a  note  which  the  other 

^McCauley  v.  Fulton.  44  Gal.  355.  subsequently  collected  and  was  then 
See  Marks  v.  Saywaid,  50  id.  57,  an  sued  for  the  half  by  such  assignee, 
application  of  the  same  doctrine  to    the  defendant  must  plead  his  lien. 

188 


INTEREST  OR  SHARE  OF  EACH.  §  l8b. 

bilities,  but  also  to  subsequent  equities,  and  the  claims  of 
subsequent  creditors  and  the  fluctuations  of  business. 
Hence,  though  the  partnership  debts  are  later  in  date  than 
the  mortgage  or  assignment  of  the  share,  yet  the  mortgagor 
gets  only  the  interest  in  the  surplus  as  of  the  date  of  its 
ascertainment  or  of  the  foreclosure,  and  not  as  of  the  date 
of  its  execution  or  of  default.^ 

And  where  the  partnership,  being  for  a  fixed  and  unex- 
pired term,  is  not  dissolved,  and  the  other  partners  do  not 
choose  to  apply  for  dissolution,  their  right  to  continue  the 
business  at  the  risk  of  diminishing  the  assigned  share  is  not 
affected,  although  they  have  notice  of  the  sale  or  incum- 
brance.^ 

In  Lovejoy  v.  Bowers,  11  N.  H.  404,  the  mortgagee  of  one  part- 
ner in  a  specific  part  of  the  partnership  property,  to  wit,  forty-six 
horses  and  four  stages  of  a  stage  partnership,  whether  he  could 
have  insisted  on  a  dissolution  or  not,  which  was  not  decided,  did  not 
do  so  and  the  business  continued.  It  was  held  that  a  partner  can- 
not mortgage  or  sell  his  undivided  interest  in  a  specific  part  of  the 
partnership  property,  and  that  even  if  the  mortgaged  property 
comprised  the  entire  assets  so  that  the  mortgage  was  of  the  share 
of  the  surplus,  it  would  not  avail  against  creditors,  whether  prior  or 
subsequent,  and  the  mortgagee's  right  was  only  in  the  surplus  as  it 
stood  when  the  dissolution  took  place;  and  the  suggestion  was 
made  that  all  the  property  taken  may  have  been  supplied  by  sub- 
sequent creditors,  or  drawn  from  profits  on  contracts  with  them. 

§  186.  and  subsequent  conveyances. —  Hence,  if  the 

title  of  the  property  is  subsequently  conveyed  as  a  partner- 
ship act,  whether  by  all  the  partners  uniting  in  selling  it,  or  by 

ICavander  v.  Bulteel,  L.  R.  9  Ch.  N.  J.  Eq.  334,  338;Hiscock  v.  Phelps, 
App.  79-,  Kelly  v,  Hutton,  3  id.  690;  49N.  Y.  97,  103-4;  Bank  of  N.  Ca.  v. 
Whetham  v.  Davey,  30  Ch.  D.  574;  Fowle,  4  Jones  (N.  Ca.),  Eq.  8;  Bur- 
Lindsay  u  Gibbs,  3  DeG.  &  J.  690;  bank  v.  Wiley,  79  N.  Ca.  501;  Bank 
Guion  V.  Trask,  1  id.  379;  Beecher  v.  Sawyer,  38  Oli.  St.  339;  Page  v. 
V.  Stevens,  43  Conn.  587  {dichim);  Tliomas,  43  id.  38,  44-5. 
Conantu.  Frary,  49  Ind.  530;  Church-  2  whetham  v.  Davey,  30  Ch.  D. 
ill  V.  Proctor,  31  Minn.  129;  Love-  574;  Cavander  v.  Bulteel,  L.  R.  9  Ch. 
joy  V.  Bowers,  11  N.  H.  404;  Receiv-  App.  78;  Kelly  v.  Hutton,  3  id.  703; 
ers  of  Mechanics'  Bank  v.  Godwin,  5  Redmayne  v.Forster,  L.  R.  2  Eq.  407. 

189 


§  186.  NATURE  AND  FOR^IATION. 

a  single  partner  conveying  it  in  the  due  exercise  of  his  power 
as  a  partner  in  the  scope  of  the  business,  the  second  sale 
conveys  a  title  discharged  of  all  lienor  right  under  the  pre- 
vious individual  act  of  mortgaging  or  assigning  a  separate 
share.^ 

Thus,  where  Y.  &  H.  were  deeply  involved,  and  Y.,  to  pay  his 
private  debt,  gave  a  bill  of  sale  of  a  horse  belonging  to  the  part- 
nership to  the  plaintiff,  his  creditor,  and  afterwards  he  gave  a  bill 
of  sale  of  the  same  horse  to  a  partnership  creditor,  the  latter  is  en- 
titled to  hold  the  horse  against  the  claim  of  the  former."  And 
where  one  partner  mortgaged  his  interest,  described  as  one-half,  in 
certain  property  of  the  firm,  to  secure  his  individual  debt,  and  the 
other  partner  subsequently  sold  and  delivered  the  property  in  order 
to  get  money  to  pay  a  partnership  debt,  the  buyer's  title  is  good  as 
against  the  mortgagee.  The  opinion  somewhat  limits  this  by  mak- 
ing the  insolvency  of  the  firm  an  element,  regarding  the  mortgage 
as  a  lien  upon  the  partner's  surplus,  the  proof  being  that  there  was 
no  surplus.' 

A  judgment  for  his  separate  debt  against  one  partner  in 
whose  name  is  the  title  of  real  estate  of  the  firm  will  be 
postponed  to  subsequent  mortgages  or  sales  by  the  firm 
and  to  partnership  debts  and  equities/  and  if  a  cloud  on  the 
title  will  be  removed.* 

And  so,  if  the  property  is  attached  or  sold  on  execution 
against  the  firm,  the  buyer's  title  is  unincumbered  by  such 
mortgage.^ 

1  Cavander  v.  Bulteel,  L.  R.  9  Ch.  of  Georgia,   24  Ala.    37 ;    Evans  v. 

App.   79;  Jones  v.  Parsons,  25  Cul.  Hawley,  35  Iowa,  83;  Kramers   v. 

100;  Yale  v.  Yale,  13  Conn.   185;  S3  Arthur,  7  Barr,  163;  Lancaster  Bank 

Am.  Dec.  893;  Shaw  v.  McDonald,  21  v.   My  ley,    13  Pa.  St.  544:  Meily  v. 

Ga.   395 ;  Tarbell  v.   West,  86  N.  Y.  Wood,  71  Pa.  St.   4S8  (rev.  8  Phila. 

280;  Tarbelv.  Bradley,  7  Abb.  N.  Cas.  517);  Willis  v.  Freeman,  35  Vt.  44; 

273;  Bank  v.  Sawyer,  38  Oh.  St.  338;  Johnson  v.  Rogers,  15  Bankr.  Reg.  1 ; 

Bentley  v.  Bates.  4  Young.  &  C.  182,  5  Am.  Law  Rec.  536.    Contra,  Blake 

100.     But  see  Tread  well  v.  Williams,  v.  Nutter,  19  Me.  16. 
9  Bosw.  649.  ^  Evans  v.  Hawley,  supra. 

'^Ya\e  V.  Yale,  supra.  cSinith    v.   Andrews,    49    111.    28; 

»Shaw  V.  McDonald,  21  Ga.  395.  Robinson  v.  Tevis,  38  Cal.  611 ;  Com- 

<Lakeu.  Craddock,  3  P.  Wras.  158;  mercial   Bank  v.  Wilkins,  9  Me.  28; 

1  Eq.  Cas.  Abr.  290;  Coster  v.  Bank  Hill  v.  Wiggin,  31  N.  H.  293;  Staats 

190 


INTEREST  OR  SHARE  OF  EACH.  §  187. 

Tlias,  where  W.  &  R.,  being  partners  as  bakers,  W.  gave  a  mort- 
gage on  a  horse  and  wagon  of  the  firm  for  a  private  debt  without 
R.'s  knowledge;  a  partnership  creditor  subsequently  attached  the 
horses  and  wagons  against  the  protest  of  the  mortgagee,  who  then 
sued  the  sheriff  in  trespass,  but  it  was  held  that  his  mortgage  gave 
him  no  interest  in  the  property  which  cut  off  the  other  partner  or 
creditors  from  subjecting  it.' 

In  Tarbell  v.  West,  86  N.  Y.  280,  a  partner  made  a  mortgage 
upon  his  interest  in  the  firm,  which  included  real  estate  held  in  the 
name  of  another  partner  and  also  chattels,  and  the  mortgage 
was  recorded  both  as  a  real  estate  and  as  a  chattel  mortafasfe;  the 
firm  was  then  organized  into  a  corporation,  which  bought  out  all 
the  firm's  property  and  business;  it  was  held  that  the  corporation 
received  the  property  free  of  the  mortgage  although  such  partner 
was  a  director  in  it;  that  a  mortgage  by  a  partner  conveys  nothing, 
und  a  buyer  from  the  firm,  either  during  the  partnership  or  in 
winding  up,  gets  title  discharged  of  it,  whether  he  had  notice  or 
act. 

§  187.  Assignee's  rights. —  But  the  assignee  of  a  share,  of 
course,  incurs  no  personal  liability  for  a  deficit  in  case  the 
3hare  will  not  pay  debts  and  balances,  and  no  personal  judg- 
ment can  be  awarded  against  him,  unless  he  has  agreed  to 
assume  that  burden;  2  and  so  even  if  he  is  taken  into  the 
firm,  he  is  not  deemed  to  assume  existing  debts.*  If  the 
concern  has  transferable  shares,  it  gives  a  partner  a  right 
to  convey  his  interest  with  its  antecedent  liability,  and  such 
is  the  meaning  of  a  transfer  in  such  cases,  as  in  a  corpora- 
tion;* and  in  case  of  a  banking  partnership  with  transfer- 
able shares,  where  a  partner  may  become  indebted  to  the  firm 
in  his  capacity  as  customer  of  the  bank,  there  is  no  lien 
upon  his  shares  unless  the  articles  specially  reserve  it,  the 
right  to  sell  shares  being  a  main  inducement  to  take  them.* 

V.  Bristow,  73  N.  Y.  264;  Kistner  v.  Phillips  r.  Blatchford,  Vdl  Mass.  510; 

Sindlinger,  33  Ind.  114;  Whitmorei;.  Baird's  Case,  L.  R.  5  Ch.  App.  725. 

Shiverick,  3  Nev.  288.  But  see   Lake  v.  Munford,  4  Sm.  & 

1  Smith  V.  Andrews,  49  111.  28.  Mar.  312. 

2  Hunt  V.  Smith,  3  Rich.  Eq.  465.  &Pinkett  v.  Wright,  3  Hare,  120; 

3  See  §  507.  S.  C.  as  Murray  v.  Pinkett,  12  CI.  & 

4  Mayhew's  Case,  5  DeG.  M.  &  G.  Fin.  764.  See  Spence  v.  Whitaker,  3 
837;  Savage  v.  Putnam,  33  N.  Y.  501 ;  Porter  (Ala.),  297. 

191 


§  188.  NATURE  AND  FORMATION. 

Incident  to  the  right  of  the  assignee  or  mortgagee  to  share 
in  the  snrplus  is  the  right  to  enforce  a  settlement  of  the 
partnership  accounts  in  order  to  ascertain  if  there  is  any 
surplus;  and  he  may  also  foreclose  and  in  the  same  suit  de- 
mand an  accounting.^ 

Where  real  estate  is  in  the  name  of  one  partner,  a  bona 
fide  mortgagee  or  buyer  from  him  for  value  without  knowl- 
edge of  the  firm's  interest  would  be  protected.^ 

§  188.  Morti^age  of  share  to  a  partner. —  The  same  rules 
apply  when  the  partner  receives  instead  of  giving  a  mort- 
gage upon  an  interest.  Thus,  a  mortgage  to  one  partner  on 
partnership  property  to  secure  a  return  to  him  of  his  capital 
puts  him  in  no  better  position  than  before,  for,  as  against  co- 
partners, he  already  has  a  lien,  and  as  to  creditors  the  mort- 
gage is  not  available.^ 

Thus,  if  one  of  three  p:lrt^ers  buj's  out  another,  the  interest  pur- 
chased by  liim  is  subject  to  the  claims  of  the  third  partner  on  such 
share;  and  if  the  third  partner  pa}^  a  debt,  he  may  be  entitled  to 
charge  two-thirds  of  it  to  the  buying  partner.*  So,  if  a  partner 
sells  out  his  interest  to  a  third  person,  who  is  thereupon  taken  into 

1  See  ^§  927,  928.  For  as  the  lien  no  knowledge ;  but  here  he  at  least 
of  tlie  otlier  partners  is  not  nfTected  had  notice  that  there  was  a  partner- 
by  the  mortgage  of  an  interest,  they  ship.  Settembre  v.  Putnam,  30  CaL 
cannot  prevent  a  foreclosure  of  the  490.  A  mortgagee  of  the  share  of  a 
mortgage.  Smith  v.  Evans,  37  Ind.  partner  in  real  estate  without  notice 
526.  As  to  the  right  to  wind  up  a  of  the  iiartnership,  if  tosecure  a  pre- 
partnership  for  a  fixed  term  not  yet  existing  debt  of  such  partner,  is  not 
expired,  see  §  585.  a  holder  for  value,  but  takes  subject 

2Dupuy  V.  Leavenworth,  17  Cal.  to  partnersliip  liabilities.  Hiscocku. 
202;  Reeves  v.  Ayers,  38  111.  4r8;  His-  Phelps,  49  N.  Y.  97,  103-4;  Lewis  v, 
cock  V.  Phelps,  49  N.  Y.  97  (S.  C.  be-  Anderson,  20  Oh.  St.  281,  285.  But 
low.  2Lans.  106) ;  Lewis u.  Anderson,  see  Reeves  v.  Ayers,  38  III.  418. 
20  Oil.  St.  281,  28.") ;  Miller  v.  Proctor,  3  Irwin  v.  Bidwell,  72  Pa.  St.  244, 
id.  442,  448;  Mason  v.  Parker,  16  250.  The  mortgage  itself  is  not  part- 
Grant's  Ch.  (Up.  Can.)  230.  As  to  nership  assets,  Niagara  Co.  Nat. 
what  constitutes  notice  of  the  part-  Bank  v.  Lord,  33  Hun,  557;  but  has 
nership,  see  §  295.  Where  the  title  been  held  good  in  tlie  hands  of  a  &o?ia 
to  a  mine  is  in  two  partners,  a  pur-  ^ide  buyer  as  against  creditors.  Scud- 
chaser  of  the  interest  of  one  holds  der  v.  Delashmut,  7  Iowa,  39.  See 
subject  to  the  trust  in  favor  of  other  Reid  v.  Godwin,  43  Ga.  527. 
partners,  of  whose  existence  he  had        <Kendrick  v.  Tarbell,  27  Vt.  512. 

192 


INTEREST  OR  SHARE  OF  EACH.  g  l!S'.). 

the  firm,  and  the  retiring  partner  takes  a  mortgage  from  the  vendee 
of  the  share  sokl  to  secure  the  purchase  money,  or  reserves  a  lien 
upon  it,  this  lien  is  subordinate  to  the  claims  of  the  other  partners 
for  debts  and  balances.' 

So,  where  L.,  of  L.  &  A.,  sold  out  all  his  interest  to  A.,  who  gave 
him  a  mortgage  on  the  partnership  property  to  secure  the  purchase 
money  and  his  liability  for  debts,  the  propert}'  being  sold  by  con- 
sent and  the  money  being  in  L.'s  hands,  he  can  appropriate  it  to 
pay  partnership  debts  before  paying  A." 

Where  M.,  of  H.  &  M.,  partners  owning  real  and  personal 
property,  sold  out  to  his  partner  H.  all  his  interest  in  the  firm  in 
consideration  of  H.'s  promise  to  pa}''  the  debts  and  pay  him  ^1,500, 
and  H.  mortgaged  the  real  estate,  which  still  stood  in  the  names  of 
both,  to  a  partnership  creditor,  the  mortgagee  having  foreclosed,  is 
entitled  to  a  decree  for  the  title  against  both,  for  H.'s  mortgage 
was  of  half  the  legal  title  and  the  entire  equitable  title,  and  the 
claim  for  a  firm  debt  is  prior  to  his  claim,  which  is  for  an  individual 
debt.^ 

§  189.  Whether  sales  of  shares  separately  is  a  sale  of  the 

whole. —  A  most  interesting  question,  on  which  courts  have 
differed,  arises:  whether  or  not  a  transfer  of  his  share  by 
each  of  the  partners  separately  will  convey  the  entire  inter- 
est of  the  firm,  leaving  nothing  for  the  partnership  creditors 
except  the  individual  responsibility  of  the  former  partners; 
or  whether  such  transfer,  like  the  transfer  of  a  single  share, 
is  of  the  surplus  only  after  settlement  of  liabilities,  which 
is  all  that  an  individual  partner  has. 

On  the  one  hand  it  is  urged  that  to  convert  the  assets  of 
the  firm  into  separate  property  of  each  partner,  or  of  those 
claiming  under  each,  requires  the  concurrence  of  each  part- 
ner. On  a  transfer  by  each  partner  individually  of  his  re- 
spective interest,  each  still  retains  his  personal  right  to 
have  the  assets  applied  to  indemnify  him  against  the  part- 
nership debts,  and  the  sale  is  subject  to  those  debts.  The 
title  of  the  firm  as  between  it  and  its  creditors  is  not  divested 

1  Con  well  V.  Sandid^e,  8  Dana,  273 ;        2  Low  i\  Allen,  41  Me.  248. 
Savage  v.  Carter,  9  id.  408,  where  the        '  Seaman    t\    Huffaker,    21    Kan. 
lien  was  reserved  on  specific  prop-    254. 
erty. 

Vol.  I  —  13  193 


g  189  NATURE  AND  FORMATION. 

as  to  the  corpus  of  the  property,  or  at  least  as  to  so  mucn 
as  is  necessary  to  pay  debts,  by  separate  transfers  to  stran- 
gers. If  a  retiring  partner  selling  out  to  his  copartners 
loses  his  lien  it  is  because  the  concurrence  of  all  in  the  con- 
version of  the  property  has  been  had.  And  even  if  the  firm 
altogether  sell,  if  the  sale  is  not  bona  fide  creditors  can  at- 
tack it. 

A  sale  of  the  interest  of  one  partner,  whether  voluntary 
or  on  execution,  which  confessedly  carries  an  interest  in- 
cumbered by  debts,  or,  in  other  words,  a  share  in  a  surplus 
left  after  settlement  of  liabilities,  if  after  this  a  sale  of  the 
other  partner's  interest  is  to  deprive  the  latter  of  his  right 
to  require  the  assets  to  be  applied  to  debts,  and  hence  de- 
stroy the  foundation  of  the  preference  of  joint  creditors  in 
the  assets,  involves  the  absurdity  that  the  latter  sale  con- 
verts the  interest  purchased  at  the  former  sale  from  an  in- 
terest on  the  surplus  to  an  interest  in  the  corpus  of  the 
property. 

In  Menagh  v.  Whitwell,  52  N.  Y.  146  (11  Am.  Rep.  683),  a  firm 
consisting  of  three  partners  was  insolvent.  One  partner  gave  a 
chattel  mortgage  to  A.  on  his  interest,  described  as  being  three- 
fifths  of  the  factory,  property,  accounts,  etc.,  to  secure  his  individ- 
ual debt.  Another  partner  gave  a  like  mortgage  for  a  like  purpose 
to  B.,  and  the  third  partner  sold  out  his  so-called  one-fifth  interest 
to  C.  The  mortgagees  took  possession,  under  the  mortgages  which 
gave  that  power,  of  their  undivided  interests,  and  on  foreclosure 
the  interests  were  purchased  by  diff'erent  persons.  Judgments 
against  the  firm  were  obtained  by  partnership  creditors,  and  execu- 
tions thereunder  were  levied  upon  the  property  after  these  transfers 
on  foreclosure.  It  was  held,  on  the  grounds  stated  above,  that  the 
buyers  from  the  individual  partners  obtained  oidy  tlieir  interest  in 
the  surplus  and  that  the  property  was  still  subject  to  levy  by  joint 
creditors.  Kapallo,  J.,  in  criticising  the  Pennsylvania  cases  here- 
after noticed,  and  in  order  to  show  the  injustice  of  the  contrary 
view,  puts  a  case  where  a  firm  is  solvent,  while  its  members  indi- 
vidually are  insolvent,  to  show  the  injustice  of  a  doctrine  that 
would  exclude  the  joint  creditors.  Thus,  suppose  a  firm  of  three 
equal  members,  having  assets  worth  $300,000  and  owing  debts  of 
$150,000.     Here  the  interest  of  each  partner  is  $50,000.     Now  if 

194 


INTEREST  OR  SHARE  OF  EACH.  §  189. 

the  members  are  individually  indebted,  and  one  sells  his  interest 
for  $50,000  and  the  share  of  another  is  sold  on  execution  at  $50,000, 
its  full  value,  the  equity  of  the  joint  creditors  can  be  worked  out 
through  the  equity  of  the  remaining  partner  and  those  who  have 
sold  can  be  protected,  the  purchasers  of  the  interests  receiving  the 
surplus  only,  and  joint  creditors  can  still  levy.  But  under  the 
Pennsylvania  doctrine  a  sale  by  the  third  partner  converts  the  in- 
terests of  the  former  buyers  from  an  interest  in  the  surplus  to 
shares  in  the  corpus  of  the  property,  thus  doubling  their  value,  and 
appropriating  the  fund  which  should  have  gone  to  pay  the  joint 
debt  to  the  individual  transferrers  without  any  consideration. 

In  Osborn  v.  McBride,  3  Sawy.  590;  16  Bankr.  Reg.  22,  judg- 
ments were  rendered  against  each  partner  separately  in  favor  of  an 
individual  creditor  of  each,  and  under  them  the  property  of  the 
partnership  was  sold  on  separate  executions  and  separate  sales  to 
the  plaintiff  in  the  actions.  He  was  held  to  have  acquired  only  a 
right  to  an  account  subordinate  to  the  claims  of  joint  creditors, 
and  could  not  hold  the  property  against  the  subsequent  assignee  in 
bankruptcy  of  the  firm.' 

In  Commercial  Bank  v.  Mitchell,  58  Cal.  42,  a  joint  and  several 
note  was  signed  by  each  partner  for  a  partnership  debt.  The 
holder  sued  the  partners  upon  it  as  individuals  and  not  as  a  firm, 
and  got  out  an  attachment  which  was  levied  on  the  separate  inter- 
ests of  the  defendants  in  the  joint  property.  A  subsequent  attach- 
ment in  an  action  against  the  firm  was  held  to  be  the  superior  lien, 
on  the  ground  that  the  interest  of  the  partners  was  the  balance 
after  the  debts  are  paid. 

In  Caldwell  v.  Bloomington  Mfg.  Co.  17  Neb.  489,  A.  &  B.,  a 
firm,  being  insolvent,  A.  made  a  bill  of  sale  of  his  interest  to  S.  to 
pav  or  secure  his  individual  debt,  and  B.  made  a  similar  bill  of  sale 
of  his  interest  to  C.  for  his  individual  debt  due  C.  S.  and  C.  claimed 
to  have  divided  the  assets  between  themselves  under  their  mort- 
p-ao-es,  but  the  fund  realized  by  foreclosure  of  a  mortgage  prior  to 
theirs  was  held  to  be  subject  first  to  the  claims  of  partnership  cred- 
itors, 

1  The  earliest  case  upon  the  subject  of  the  same  creditor  on  partnership 
had  been  that  of  Brinkerhoff  v.  Mar-  debts,  and  the  partnership  property 
vin,  5  Jolms.  Ch.  320,  in  which  each  was  held  to  be  bound,  as  there  was 
partner  had  successively  confessed  a  one  consolidated  judgment  for  the 
judgment  against  himself  in  favor    whole  against  both  partners. 

195 


§  190.  NATURE  AND  FOiniATION. 

In  Maxwell  v.  Wheeling,  9  W.  Va.  206,  M.,  of  M.  &  McK.,  a  firn;, 
conveyed  all  his  interest  to  S.  to  secure  his  individual  debt  to  ii 
third  person.  S.  sold  the  property  under  the  trust  at  auction,  and 
McK.  bought  it,  paying  S.  in  cash.  This  cash  was  held  not  subject 
to  judgment  creditors  of  the  partnership,  in  S.'s  hands,  as  beinsi 
joint  property,  and  that  the  creditors  must  look  to  the  property  in 
McK.'s  hands,  for  M.  did  not  sell  partnership  property  to  S.,  but 
could  sell  his  own  share  only. 

In  New  Hampshire,  levies  by  separate  creditors  of  each  of  th 
partners  were  held  subordinate  on  distribution  of  proceeds  to  a  sub- 
sequent levy  by  a  partnership  creditor.' 

§  190.  Contrary  rulings. —  On  the  other  hand  it  is  urged 
that  although  the  joint  effects  belong  to  the  firm  and  not  to 
the  partners,  each  of  whom  is  entitled  only  to  a  share  of 
what  may  remain  after  payment  of  the  partnership  debts, 
and  consequently  no  greater  interest  can  be  derived  by  a  pur- 
chase of  such  share,  either  by  voluntary  assignment  or  sale 
on  execution,  for  the  sale  is  not  of  chattels,  but  an  interest 
incumbered  with  the  joint  debts,  yet  as  the  partnership 
creditors'  priority  on  distribution  arises  because  the  partner 
whose  share  has  not  been  sold  has  the  right  to  insist  upon 
tlie  application  of  all  the  assets  to  the  debts  for  his  own  pro- 
tection in  order  to  receive  his  share  unincumbered,  or  to  di- 
minish his  personal  responsibility,  and  the  courts  will  use 
this  right  for  the  benefit  of  the  creditors  whenever  the  fund  is 
in  its  hands,  as  is  sometimes  said  by  a  species  of  equitable 
subrogation,  and  the  joint  creditors  have  no  lien  arising  out 
of  any  preference  inherent  in  their  relation  as  creditors, 
hence  where  the  copartners  have  lost  their  right  to  insist 
upon  such  application,  the  foundation  for  asserting  a  prefer- 
ence to  joint  creditors  is  gone. 

1  Tappan  v.  Blaisdell,  5  N.  H.  190 ;  was  ruled  that  an  assignment  for  ben- 
Jarvis  v.  Brooks,  7  Foster,  37 ;  59  Am.  efit  of  creditors  by  each  of  the  part- 
Dec.  359.  It  will  be  seen,  however,  nersof  his  separate  property  conveys 
hereafter,  that  in  this  state  the  cred-  no  partnership  property,  and  hence, 
itor  has  more  than  a  mere  derivative  on  discharge  in  insolvency,  the  part- 
equity,  but  lias  an  inherent  priority,  nersiiip  creditors  can  still  sue  and  at- 
not  dependent  upon  the  equity  of  tach.  Glenn  v.  Arnold,  56  Cal.  631  j 
the  partners;  and  in   California    it  Freeman  v,  Campbell,  id.  639. 

196 


INTEREST  OR  SHARE  OF  EACH.  §  190. 

This  view  of  the  law  was  adopted  in  Doner  v.  Stauffer,  1  Pa. 
(Penrose  &  Watts)  198,  where  Howry  v.  Eshelman  were  in  part- 
nership and  separate  creditors  of  each  obtained  judgments  against 
each,  and  were  successively  levied  upon  the  interest  of  each  in 
the  firm,  and  the  partnership  property  was  simultaneously  sold 
under  them  and  the  proceeds  paid  into  court.  But  the  firm  was 
largely  insolvent,  and  the  unpaid  claims  of  partnership  creditors 
exceeded  the  proceeds,  and  one  of  the  partners  was  greatly  inter- 
ested in  having  them  paid  in  order  to  lessen  his  individual  liability. 
Gibson",  C.  J.,  says  that,  had  the  sales  of  the  interest  of  each  been 
successive,  the  first  sale  would  have  passed  the  interest  of  one  part- 
ner, subject  to  the  equity  of  the  copartner,  the  execution  creditor 
receiving  the  price,  and  the  second  sale  would  have  passed  the  in- 
terest of  the  copartner,  including  this  equity,  to  the  same  pur- 
chaser. That  a  simultaneous  sale  of  the  whole  was  in  legal 
contemplation  a  separate  sale  of  the  interest  of  each,  and  there- 
fore made  no  difference  in  the  result.  That  had  there  been  separate 
purchasers  of  the  share  of  each,  the  question  might  arise  whether 
they  stood  in  the  relation  of  partners  so  as  to  enable  the  joint 
creditors  to  follow  the  goods,  but  it  seems  to  him  they  would  not. 
That  it  is  conceded  that  the  goods  in  the  hands  of  the  buyers  are 
not  subject  to  creditors'  claims,  and  the  proceeds  cannot  be  substi- 
tuted for  the  goods  because  the  partners'  lien  is  gone. 

This  decision  is  followed  by  two  others  in  that  state,'  one  of 
which  held  if  each  partner  sells  his  interest  in  the  property  and  it 
is  sold  on  executions  against  each,  the  partners'  lien  is  waived  and 
the  creditor's  priority  is  gone.  And  the  other,"  where  each  part- 
ner assigned  his  private  property  and  his  interest  in  the  firm  on 
successive  days  to  the  same  assignee,  held,  that  there  was  nothing 
left  in  the  partners  through  which  partnership  creditors  could  take, 
and  therefore  the  sheriff  could  not  levy  for  a  partnership  debt.* 

In  Couehman  v.  Maupin,  78  Ky.  33,  a  creditor  of  the  partners 
as  individuals,  and  not  as  a  firm,  got  judgment  and  placed  one  exe- 
cution in  the  hands  of  the  officer,  and  by  the  law  of  that  state  it 

1  Coover's    Appeal,    29    Pa.    St.    9  tlie  interest  of  one  partner  is  sold 

faff'g  3  Phila.  2s7).  the    proceeds    are    not    partnership 

^McNutt  V.  Strayhorn,  39  Pa.  St.  assets,  because  it  is  his  property  and 

269.  not  the  joint  property  which  is  sold. 


'And    yet    in    Pennsylvania    the    Jones' Appeal,  70  Pa.  St.  169. 

197 


usual  doctrine  is  recognized  that  if 


§  100.  NATURE  AND  FORMATION. 

became  a  Hen  from  sucli  time;  before  actual  levy  tbe  partners 
conveyed  all  the  assets  to  a  trustee  for  the  benefit  of  partnership 
creditors.  The  execution  creditor  was  held  to  have  the  preferable 
lien.  The  reasoning  of  the  court  is  that  creditors  have  no  lien 
except  what  is  derived  from  or  through  the  partners  by  equitable 
subrogation,  the  partners'  lien  being  to  secure  to  each  his  rights, 
and  not  for  the  protection  of  creditors,  and  if  no  partner  can 
assert  his  lien  the  creditors  are  equally  unable  to  do  so;  and  it 
makes  no  difference  whether  the  partners'  lien  is  lost  by  voluntary 
waiver  or  by  operation  of  law;  and  as  the  debt  here  was  the  debt 
of  each,  the  lien  cannot  be  used  to  protect  a  partner  against  his 
own  debt;  hence,  partnership  creditors  can  get  no  lien  prior  to 
that  held  on  a  joint  debt  of  the  individual  partners.' 

In  Kimball  v.  Thompson,  13  Met.  283,  if  a  partner,  with  the 
consent  of  the  other  partner,  sells  his  half  of  the  effects  of  the 
firm  to  a  third  person  without  fraud,  and  the  other  partner  then 
sells  his  half  to  the  same  person,  the  latter  gets  a  good  title  against 
all  the  world  and  creditors  cannot  object.  But  here  there  was  a 
concurrent  intention  of  both  partners  to  determine  the  joint 
ownership.* 

»S.P.Saunder8V.ReiU7, 105N.Y.  12.    each  partner   seems  to  have  made 
'In  Norrisw.  Vernon,  8  Rich.  L.  13,    separate  assignments  of  his  share. 

198 


CHAPTER  X. 

THE  FIRM  NAME. 

§  191.  Rationale  of. —  It  is  usual  for  partners  to  adopt  a 
firm  or  partnership  name  or  style;  ^  for  convenience  of 
designation  and  in  trading  partnerships,  this  convenience  is 
so  great  as  to  almost  be  a  necessity. 

But  as  a  partnership  is  not  a  person  distinct  from  its  mem- 
bers, the  only  office  for  a  firm  name  is  identification  and 
convenient  abbreviation  except  in  limited  partnerships,^  as 
the  agreed  sign  or  adopted  symbol  to  represent  and  include 
the  individual  names  the  same  as  if  each  was  separately 
given,  but  with  the  additional  signification  that  a  partner- 
ship act  is  denoted  by  using  the  joint  name;  ^  for  the  pres- 
ence of  the  separate  individual  names  does  not  necessarily 
show  this  unless  an  intention  to  do  a  partnership  act  is  also 
present,  either  expressly  or  by  implication  derived  from  the 
nature  of  the  act.*  In  other  words,  though  the  fact  of  a  firm 
name  implies  the  fact  of  a  firm,^  yet  the  converse  is  not 
true  —  a  partnership  does  not  involve  a  name. 

This  name  may  contain  the  name  of  one  or  more  or  all 
the  partners,  or  the  names  of  one  or  more  with  a  collective 
designation,  or  may  be  purely  fanciful,  and  in  this  country 
may  be  a  corporate  name.  The  use  of  the  collective  designa- 
tion "&  Co."  creates  a  presumption  that  there  is  a  partner 

1  The  word  firm  means  the  name,  partner  can  foreclose.  Bolckow  v. 
from  the  Italian ^?'mare  —  to  sign  or  Foster,  25  Grant's  Ch.  (Up.  Can.)476. 
subscribe,  and  only  derivatively  de-  2  gee  Bates  on  Limited  Partner- 
notes  the  body.  See  Churton  V.  Doug-  ships,  p.  73. 

las,  H.  V.  Johns.  174,  189.     As  refer-  sHaskins  v.  D"Este,  133  Mass.  356; 

ring  to  the  body,  it  is  synonymous  Ferris  v.  Thaw,  5  Mo.  App.  279,  28ii; 

with  partnership;  thus,  wherea  rec-  Baring  v.  Crafts,  9  Met.  380,  392. 

ord  finds  a  mortgage  was  to  secure  *  See  §  453. 

the  "  firm  "  it  does  not  mean  as  ten-  5  Fulton    v.   Maccracken,  18    Md. 

anta  in  common ;  hence  the  surviving  538,  544. 

199 


S  192.  NATURE  AND  FORMATION. 

in  addition  to  the  one  or  to  those  whose  names  appear;  *  but 
this  is  rebuttable.^  Hence  a  name  is  not  an  organic  or  in- 
dispensable part  of  the  existence  of  a  partnership.^  Hence, 
also,  in  an  action  against  partners,  it  is  not  necessary  to 
prove  that  they  had  a  name,  or  if  a  name  be  averred  it  is 
not  necessary  to  prove  it  if  it  be  charged  and  proved  that 
the  partners  made  a  promise  in  the  name  used  in  the  prom- 
ise.* And  in  an  action  by  partners  the  allegation  that  they 
did  business  under  a  stated  name  is  not  material  and  need 
not  be  proved.^ 

§  192.  Name  of  one  as  a  firm  name. —  The  name  of  a  sin- 
gle partner  may  be  and  often  is  adopted  as  the  firm  name.*' 
In  such  case  a  note,  bill  or  contract  in  the  individual  name 
of  such  partner  may  be  his  individual  promise  or  a  part- 
nership transaction,  which  is  open  to  proof.  Prima  facie 
the  contract  is  what  it  purports  to  be,  the  individual  matter 
of  the  signer;  but  it  may  be  shown  to  have  been  made  by 
the  authority  or  for  the  purposes  of  the  firm,  or  that  credit 
was  given  to  the  firm  by  reason  of  declarations  of  the  part- 
ner that  it  was  for  the  partnership.'^ 

1  The  Francis,  1  Gall.  618;  The  San  Pursley  v.  Ramsey,  31  Ga.  403;  Kit- 
Jose  ludiano,  2  id.  268;  Ferguson  v.  ner  v.  Whitlock,  88  III.  513;  Getchell 
King,  5  La.  Ann.  G43;  Whitlock  u  v.  Foster,  100  Mass,  42,  47;  Haskins 
McKechnie,  1  Bosw.  427;  Armstrong  v.  D'Este,  133  id.  356;  Ontario  Bank 
V.  Robinson,  5  Gill  &  J.  412.  Contra,  v.  Hennessey,  48  N.  Y.  545. 
Robinson  v.  Magarity,  28  111.  423  (a  ^Lea  v.  Guice,  13  Sm.  &  Mar.  656; 
dKtum).  Lessing  v.    Hulzbacher,  35   Mo.  445. 

2  Whitlock  V.  McKechnie,  supra;  Drake  v.  Elwyn,  1  Gaines,  184  (not 
Ferguson  v.  King,  aupra;  Charman  overruled  on  this  point  in  s.  C.  1  N. 
V.    Henshaw,    15    Gray,    293.      And  Y.  242.) 

where  a  note  is  payable  to  the  firm,  5  Stickney  v.  Smith,  5  Minn.  486. 
but  no  such  firm  exists,  the  person  to  6  As  in  Kirk  v.  Blurton,  9  M.  &  W. 
whom  the  note  is  given  may  assume  284;  Manuf.  &  Mech,  Bank  v.  Win- 
such  firm  name  in  order  to  indorse  ship,  5  Pick.  11;  Winship  v.  Bank  of 
the  note  over.  Blodgett  v.  Jackson,  U.  S.  5  Peters,  529, 
40  N.  H.  21.  For  the  effect  upon  a  ^  See  §  443;  Yorkshire  Banking  Co. 
priority  of  business  creditors  over  v.  Beatson,  L.  R.  4  C.  P.  Div.  204; 
separate  creditors  wliere  a  person  Winship  u.  Bank  of  U.  S.  5  Pet.  529; 
carries  on  business  by  himself,  but  Strauss  v.  Waldo,  25  Ga.  641;  Thei- 
in  a  firm  name,  see  §  106.  len  v.  Hann,  27  Kan.  778.  In  Bank 
»Le  Roy  U.Johnson,  2  Pet.  186,  198;  of  Rochester  v,   Monteath,    1    Den 

200 


THE  FIRM  NAME.  §  191. 

§  193.  Changing  or  adding  another  name.— Partners  may 
change  their  name  if  they  desire,  and  this  is  not  a  dissolu- 
tion and  formation  of  a  new  firm,  and  does  not  release  or 
terminate  contracts  made  with  or  by,  or  obligations  to  and 
from,  the  partners  under  the  former  name.^ 

Hence  the  partners  may  by  a  usage  recognize  a  certain 
name  as  representing  the  firm,  as  effectually  as  if  ex- 
pressly agreed  upon  in  the  articles  of  partnership;  as  by 
signing  notes  made  in  a  certain  way,  or  paying  bills  drawn 
on  it  in  that  name,^  or  making  out  the  books,  bills  and  ac- 
counts, or  advertising  in  a  firm  name,^  so,  also,  printed 
cards  are  evidence  of  the  name  of  the  firm,*  and  may  bring 
an  action  in  their  individual  names  on  obligations  made  to 
them  in  a  name  not  formally  adopted  by  them  or  varying 
from  the  correct  name.* 

§  1 94:.  Sulbstituting  firm  for  individual  names,  and  vice 
versa. —  A  note  payable  to  partners  individually  may  be  in- 
dorsed over  by  using  the  firm  name,*^  and  a  note  payable  to 
a  firm  may  be  indorsed  over  by  using  all  individual  names 
in  the  indorsement.  Thus,  where  a  note  was  payable  to  J. 
J.  &  J.  P.  Kirk,  and  was  indorsed  thus:  John  J.  Kirk,  Geo. 

403;  43  Am.   Dec.   681,   one  of  the  ^Pursley  v.  Ramsey,  31   Ga.  403; 

names  was   that  of  a  person  not  a  Jemison  v.  Minor,  34  Ala.   33;  Pal- 

partner.     In    Mississippi  there    is  a  mer  v.  Stephens,  1  Den.  471;  Folk  w. 

statute    that    if  a    person    transact  Wilson,  21  Md.  538. 

business  as  a  trader  in  partnership  *Le  Roy  v.  Johuson,  2  Pet.  186, 

■without  the  words  &  Co.,  or  by  a  198. 

like  designation  fail  to  disclose,  part-  <  Michael  u.  Workman,  5  W.  Va. 

nership  property  shall  be  treated  as  391,  393. 

his;  and  under  this  statute  it  was  ^ Crawford  u.  Collins,  45  Barb.  269 ; 

held  that  cotton  bouglit  by  a  person  30  How,   Pr.  398 ;  Messner  v.  Lewis, 

in  his  own  name  was  liable  to  exe-  20  Tex.  221,  where  the  partners  sued 

cution  on  a  judgment  rendered  be-  in  their  individual  names,  joiuiug 

fore  the  statute  took  effect,  although  causes  of  action   payable   to    them 

owned  by  an    undisclosed    partner  under  different  names  as  constitut- 

who  claims  it,     Gumbel  v.  Koon,  59  ing  different  houses. 

Miss,  264,  6  §453;  Mick  v.    Howard,    1    Ind. 

1  Gill  17.  Ferris,  83  Mo,  156;  Shine  250;    Dudley   v.    Littlefield,    21   Me. 

V.  Central  Sav,  Bk.  70  id,  524;  Mel-  418,  And  see  Cooper  v.  Bailey,  53  id. 

linger  v.  Parsons,  51   Iowa,  58 ;  Bil-  230, 
lingsley  v.  Dawson,  27  id.  210, 

201 


§  195.  NATURE  AND  FORMATION. 

McConeghy,  the  indorsee  sued  McConeghy,  who  in  defense 
claimed  to  have  indorsed  for  the  maker's  accommodation, 
and  claimed  that  the  plaintiff  had  no  title  because  the 
payees  had  not  indorsed.  It  was  held  that  the  payees  are 
presumed  prima  facie  to  constitute  a  partnership,  and,  from 
identity  of  name,  that  John  J.  Kirk  was  one  of  the  part- 
ners; and  it  was  further  held  that  the  hidorsement  of  nego- 
tiable paper  by  one  partner  on  partnership  account  would 
bind  the  firm.^  A  note  payable  to  a  firm  and  indorsed  over 
in  the  name  of  one  partner  has  been  held  to  convey  the 
equitable  title,  the  other  partner  not  being  the  objector.^  A 
note  made  payable  to  one  partner,  in  the  course  of  business, 
cannot  be  indorsed  over  by  the  other  partner  in  the  payee's 
name;''  but  a  note  payable  to  A.  may  be  indorsed  over  in 
the  name  of  A.  &  Co.;  just  as  if  A.  and  B.  convey  A.'s 
property,  it  is  a  good  conveyance  by  A.* 

§  195.  Olio  firm  witb  several  names. —  As  any  symbol 
that  the  partners  may  use  to  designate  themselves  collect- 
ively will  represent  them,  a  firm  may  have  several  names  if 
its  members  choose.^  Hence,  judgment  may  be  had  in  one 
action  on  a  note  signed  A.  Hunt  &  Bro.  and  on  another 
signed  Hunt  &  Bro.,  where  both  names  represent  the  same 
individuals;^  or  defendants  maybe  described  as  partners 
under  a  certain  name,  and  their  promise  by  another  name 
may  be  shown  and  recovered  upon,  just  as  a  person  assum- 
ing an  alias  may  be  made  liable.^ 

1  McConeghy  v.    Kirk,  6S  Pa.  St.  Brainard,   35  id.    476;    Wartelle    v. 

200.     But  contra  as  to  the  proposi-  Hudson,  8  La.  Ann.  486. 

tion  that  ihe  indorsement  of  one  in-  ^McCauley  v.  Gordon,  64  Ga.  221; 

dividual  name  will  convey  title  to  a  37  Am.  Rep.  68. 

note  payable  to  the  firm,  Mclntire  <  Finch  w.  De  Forest,  16  Conn.  445. 

V.  McLaurin,   2  Humph.  71;  36  Am.  5  Michael  v.  Workman,  5  W.  Va. 

Dec.  300 ;  Moore   v.  Ayres,  5  Sm.  &  391 ;  Moffat  v.  McKissick,  8  Baxter, 

Mar.    310;   Estabrook    v.    Smith,    6  517. 

Gray,  570,  where  one  of  the  payee  6  Hunt  v.  Semonin,  79  Ky.  270. 

firm  in  his  individual  name  indorsed  7  Miner    v.    Downer,   20    Vt.    461; 

the  note  to  the  other.  Brown    v.   Jewett,    18    N.    H.    230, 

2 Planters',  etc.  Bank  v.    Willis,  5  where  tliey  were  known  as  "Farm- 
Ala.    770;  Ala.    Coal  Mining  Co.  v.  ers  «&  Mechanics,"  and  as  "Farmers 

203 


THE  FIRM  NAME.  §  19G. 

Especially  is  this  common  where  there  are  two  places  of 
business  in  different  cities.*  Thus,  where  partners  car- 
ried on  a  business  as  J.  &  B.  in  Dakota,  and  as  J.,  B.  &  Co. 
in  Colorado,  the  fact  of  two  names  is  of  no  importance  where 
the  same  individuals,  neither  more  nor  less,  own  each  busi- 
ness, and  the  assets  of  both  nominal  firms  in  the  hands  of 
an  assignee  in  insolvency  are  equally  applicable  to  creditors 
of  each  house. •^  If  the  number  of  partners  vary  in  each, 
that  is,  if  either  have  a  partner  not  common  to  the  other, 
they  are  of  course  separate  firms.* 

§196.  Two  firms  Avith  same  name. —  Two  independent 
firms,  composed  in  part  of  the  same  partners,  may  adopt  the 
same  name,  and  in  such  case  the  question,  which  is  bound 
by  a  contract  made  in  the  firm  name  by  a  partner  common 
to  both,  is  one  of  identity,  or  to  determine  to  which  credit 
was  intended  to  be  given,  and  is  the  same  question  that 
arises  where  a  firm  is  in  the  name  of  an  individual  and  a 
note  is  made  by  him.  If  the  controversy  grows  out  of  a 
purchase  of  goods  in  the  firm  name,  apparently  suitable  to 
one  firm  and  not  to  the  other,  or  for  a  loan  of  money  to  pay 
the  debts  of  one  firm,  the  limitation  on  the  partner's  author- 
ity arising  from  the  scope  of  the  business,  which  every  one 
must  take  notice  of,  determines.* 

«fe  Mechanics'  Co.,"  and  as  "Fai-mers  of  Rochester  v.  Monteath,  1  Den.  402; 
&  Mechanics' Store."  Where  Taylor  43  Am.  Dec.  681;  In  re  Williams,  3 
&  Cassily  had  a  business  house  in  Woods,  C.  C.  493 ;  Campbell  v.  Colo- 
New  Orleans,  where  Taylor  resided,  rado  Coal  &  Iron  Co.  9  Colorado,  60 ; 
and  one  in  Cincinnati,  where  Cassily  Buckner  v.  Calcote,  28  Miss.  432, 
lived,  dealing  with  each  other  as  in-  585-9 ;  Anderson  v.  Norton.  15  Lea, 
dependent  firms,  a  bill  drawn  in  Cin-  14;  Messner  ??.  Lewis,  20  Tex.  221; 
cinnati  on  "Taylor  &  Cassily,  New  Sneed  v.  Kelly,  3  Dana,  538. 
Orleans,"  is  subject  to  damages  on  2  Campbell  v.  Colorado  Coal  &  Iron 
protest  as  being  drawn  on  persons  Co.  supra;  s.  P.  In  Matter  of  Vet- 
without  the  state.  West  &  Co.  v.  terlein,  5  Ben.  C.  C.  311 ;  In  re  Will- 
Valley  Bank,  6  Oh.  St.  168.  iams,  3  Woods,  C.  C.  493.  See 
iJn  Matter  of  Vetterlein,  5  Ben.  Buckner  v.  Calcote,  28  Miss.  432, 
C.  C.  311;  Sparhawk   v.   Drexel,   12  585-9. 

Bankr.  Reg.  450;  Lathrop  u.  Suell,  6  3  Harrison  v.  McCormick,  69  Cal. 

Fla,  750;  Ballin  v.  Ferst,  55  Ga.  546;  616. 

Wright  V.  Hooker,  10  N.  Y.  51 ;  Bank  <  Elkin  v.  Green,  13  Bush,  613. 

203 


§  1{)6.  NATURE  AND  FORMATION. 

Where  a  note  is  made  by  the  Avery  Factory  Co.  by  C,  its 
agent,  and  there  was  a  corporation  and  also  a  partnership 
of  that  name,  of  both  of  which  C.  was  agent,  evidence  that 
the  corporation  had  ceased  business  and  the  partnership  had 
not  is  competent  to  identify  the  latter  as  the  maker  of  the 
note.^ 

In  Hastings  Natl  Bank  v.  Hibbard,  48  Mich.  452,  three  partners 
operated  a  mill  under  the  firm  style  of  H.  &  G. ;  they  had  another 
mill,  and  as  to  it  took  in  another  partner;  but  both  firms  had  the 
same  name  of  H.  &  G.,  and  used  the  same  letter-heads  with  the 
names  of  all  four  partners  printed  thereon.  One  of  the  original 
partners  made  a  note  in  the  firm  name,  and  procured  the  plaintiff 
a  banking  corporation,  to  discount  it.  The  jury  having  found  thai 
the  loan  was  upon  the  credit  of  the  original  firm,  the  plaint- 
iff cannot  elect  which  firm  to  sue,  and  cannot  bold  the  new  partner 
liable.  It  was  said  (p.  45S)  that  bad  the  bank  officers  supposed 
there  was  but  one  firm,  all  the  partners  would  have  been  bound.* 

So  in  Fosdick  v.  Van  Horn,  40  Oh.  St.,  459,  there  were  two  firms 
of  the  same  name  in  the  same  community,  one  of  which  contained 
a  dormant  partner,  who  was  not  a  member  of  the  other.  A  note 
was  given  in  the  common  firm  name,  and  it  was  held  that  this 
must  be  presumed  to  be  the  note  of  the  firm  not  containing  the 
dormant  partner;  and  to  charge  the  other  firm,  proof  was  necessary 

1  Jones  V.   Parker,   20   N.    H.    31.  the    former    firm,    Steele  was  held 

Lord  Kenyon  had  decided  in  the  last  upon  it.     It  is  difficult  to  agree  with 

century  in  Baker  v.  Charlton,  Peake,  this  case,  liovvever.  for  the  indorse- 

80,  that  where  several  partnerships  ment  of  the  debt  of  tlie  grocer  house 

had  the  same  name,  a  partner  in  one  was  notice  to  the  plaiutitf  that  only 

could  not  show  that  a  bill  in   the  the    partners    in    that    house  were 

firm  name  was  drawn  on  account  of  liable,  and  Steele  was  not  liable  by 

one  of  the  other  firms  in  which  he  holding  out  because  his  membership 

was  not  a  partner.     This  is  of  course  in  either  house  was  unknown.     Had 

not  now  the  law.    In  Swan  v.  Steele,  plaintiff    known    that  the    bill    be- 

7  East,  210;  3  Smith,  199,  Wood  &  longed     to    the    cotton    house    and 

Payne  had   two  kinds  of   business,  known  it  was  not  the  same  firm  as 

cotton  and  groceries,  Steele  being  a  the  grocer  house,  the  known  misap- 

dormant  partner  in  the  former  only,  propriation   should  have   prevented 

A  bill  payable  to  the  cotton  firm  was  his  recovery  upon  it. 

indorsed  over   by  Wood  &  Payne,  2  gee,  also,  Mechanics'  &  Farmers' 

without  Steele's  knowledge,  to  pay  Bank  v.   Dakiii,  24  Wend.  411;  and 

a  debt  of  the  grocer  firm,  yet,   be-  Re  Munn,  3  Biss.  442. 
cause   the  indorsement   represented 

204 


THE  FIRM  NAME,  §  198. 

either  that  credit  was  given  to  it,  which  may  be  shown  by  con- 
temporaneous declarations  of  the  ostensible  partners  or  by  circum- 
stances, or  that  the  proceeds  of  the  note  inured  to  it,  or  the  avowed 
purpose  for  which  the  money  is  needed  will  determine.' 

If  the  firms  have  different  names,  a  note  in  the  name  of  one  can- 
not generally  bind  the  other,  for  though  the  partner  who  made 
the  note  could  have  acted  in  the  capacity  of  partner  of  either,  yet 
the  note  shows  in  which  capacity  he  acted.* 

§  197.  Form  of  si^nin^. —  As  to  the  form  of  the  signature  of 
the  firm's  name,  a  note  I  promise,  signed  A.,  for  A.,  B.,  C.  &  Co., 
will  bind  the  firm.'  So  of  a  contract  by  W.,  Superintendent  of 
Keets  Mining  Co.,  parties  of  the  first  part,  signed  W.,  Supt.  Keets 
Min.  Co.**  So  I  promise,  signed  with  the  firm's  name.  A.,  B.  &  Co." 
So  a  promise  by  the  company,  signed  A.  B.,  treasurer,  is  the  com- 
pany's note.® 

§  198.  Illegal  names. —  In  Massachusetts  there  is  a  statute 
forbidding  the  use  of  the  name  of  a  former  partner,  without  his 
Written  consent,  or  that  of  his  representatives  if  deceased.'' 

In  New  York  and  Louisiana  there  is  a  statute  forbidding  the  use 
in  the  firm  style  of  the  name  of  a  person  as  partner  who  is  not 
one,  or  the  use  of  "  &  Co."  unless  an  actual  partner  is  represented 
by  it.*  This  does  not  interfere,  prohibit  or  prevent  the  use  of  fan- 
ciful names,  such  as  Eureka  Co.  or  Alderney  Manufacturing  Co.' 
And  being  highly  penal  will  not  be  extended  to  cover  a  case  where 
"  &  Co."  represented  an  actual  person,  though  under  disability,  as 
where  it  represents  the  wife  of  the  named  partner; '"  and  for  the 
same  reason  will  not  be  extended  to  forfeit  property  rights,  as  where 

1  Elkin  r.  Green,  13  Bush,  613.  291;    Morse    v.    Hall,    109    id.    409; 

2  Miner  V.  Downer,  19  Vt.  14,     See    Sohier  u.  Johnson,  111  id.  238. 

§  107.   The  consequences  of  an  inten-  sju  France,  Codede  Commerce,  21, 

tional  and  deceptive    similarity    of  the    name    must    contain   no  other 

names  have  been  considered.     §  108.  names  than  those  of  actual  partners; 

3  Gallway  v.  Mathew,  10  East,  264;  and  so  in  Germany,  except  that  a 
s.  0.  as  Galway  v.  Matthew,  1  Camp,  name  may  be  retained  after  changes 
403;  Staats  v.    Howlett,  4  Deu.  559;  in  the  firm. 

Caldwell  v.  Sithens,  5  Blackf.  99.  9  Gay  v.  Seibold,  97  N.  Y.  472,  476 ; 

*  Pearson  v.  Post,  2  Dakota,  220.  49      Am.     Rep.     533 ;    Lauferty    v. 

5  Doty  u.  Bates,  11  Johns.  544.  Wheeler,  11  Daly,  194. 

6  Walker  v.  Wait,  50  Vt.  668.  lo  Zimmerman  v.  Erhard,  83  N.  Y. 
'This  statute  will  be  found  con-  74. 

siiued  in  Rogers  v.  Taintor.  97  Mass. 

205 


§  198.  NATURE  AND  FORMATION. 

property  is  sliipped  by  a  person  in  the  name  of  a  dissolved  firm,  he 
can  recover  against  the  carrier  for  negligence; '  nor  to  transactions 
isolated  from  the  general  business  of  the  firm,  as  a  note  to  the  firm 
not  in  the  ordinary  course  of  business;  ^  or  a  leasing  of  part  of  the 
firm's  premises;^  and  one  who  continues  business  in  the  old  name 
is  not  liable  for  fraud,  if  no  fraud  was  intended/ 

The  act  was  held  to  apply  to  protect  those  giving  credit  to  the 
firm,  and  not  those  obtiining  credit  from  it,  and  therefore  to  be  no 
defense  to  a  bond  to  the  firm  reciting  the  names  of  the  partners 
and  giving  the  firm  name  with  "  &  Co."  *  But  it  had  also  been  held, 
where  surviving  partners  continued  business  in  the  old  name,  al- 
though the  deceased  had  directed  its  continuance,  they  could  not 
recover  for  goods  sold.* 

A  person  who  does  business  in  another  state,  in  a  name  composed 
of  his  own  with  "  &  Co.,"  and  employs  an  agent  to  canvass  for  him 
in  New  York,  cannot  be  defeated  in  an  action  against  his  agent  on 
this  ground,  where  the  contract  was  made  in  the  other  state.' 

An  act  authorizing  the  continued  use  of  partnership  names,  on 
filing  a  certificate  and  advertising  the  change,  does  not  enlarge  or 
create  rights  of  property;  and  therefore,  where  two  of  three  former 
partners  put  the  old  name  on  a  trade-mark,  this  is  a  materially 
false  statement  and  they  have  no  standing  in  equity.* 

POWER  OF  A  PARTNER  IN  RELATION  TO  THE  NAME. 

What  has  hitherto  been  said  has  related  solely  to  the  adop- 
tion and  use  of  the  name  by  all  the  partners.  In  order  to 
treat  the  whole  subject  together,  the  powers  of  an  individual 
partner  in  relation  to  the  name  will  be  now  considered,  al- 
though it  is  somewhat  anticipating  the  subject  of  implied 
powers. 

1  Wood  V.  Erie  R.  R.  Co.  72  N.  Y.  6  Lane  v.  Arnold,  13  Abb.  New 
196;  28  Am.  Rep.  125  (aff'g,  9  Hun,     Gas.  73. 

(348).  7  Stoddart  v.  Key,  62  How.  Pr.  137 ; 

2  Pollard  V.  Brady,  48  N.  Y.  Supe-  Succession  of  Bofenschen,  29  La. 
riorCt.  476.  Ann.  711. 

3  Sparrow  v.  Kohn,  109  Pa.  St.  359.  8  Hazard  v.  Caswell,  93  N.  Y.  259 
♦Thompson  v.  Gray,  11  Daly,  183.  (rev.  14  J.  &  Sp.  559).  For  the  right 
5  Gay  V.   Seihold,  97  N.  Y.  472;  49    to  use  the  name  after  death  or  other 

Am.  Rep.  533 ;  Kent  v.  Mojonier,  36    dissolution,  see  Good  Will, 
La.  Ann.  259. 

206 


THE  FIRM  NAME.  §  1{>». 

§  199.  Cannot  bind  the  firm  by  wrong  name.— The  general 
principle  is  that  a  partner  cannot  bind  the  firm  in  a  name 
other  than  its  adopted  style.  ^  The  firm  is  not  to  be  charged 
by  having  contracts  in  all  sorts  of  names  unloaded  upon  it. 
The  risk  is  sufficiently  great  when  a  partner  is  enabled  to 
charge  the  firm  in  the  adopted  name  without  increasing  the 
hazard;  and  an  act  even  within  the  scope  of  the  business  is 
not  necessarily  binding  on  the  firm,  unless  its  name  is  used; 
and  if  any  other  name  is  used  without  specific  authority  to 
do  the  act  in  question,  there  must  be  proof  that  a  partner- 
ship act  was  understood  by  the  party  crediting  the  firm,  and 
with  such  proof  there  must  be  decisive  evidence  that  the 
firm  got  the  benefit  of  the  contract,  in  order  to  hold  it  for 
the  consideration. 

The  doctrine  that  a  bill  ou  the  firm  can  be  accepted  by  one  part- 
ner in  his  own  name  stands  on  the  ground  that  the  word  "ac- 
cepted" was  at  common  law  sufficient  without  signature,  the 
addition  of  the  partner's  name  merely  authenticating  the  accept- 
ance; and  even  this  doctrine  is  not  universal.' 

1  Coote  V.  Bank  of  U.  S.  3  Cranch,  of  covenant  for  a  partner  to  sign  A. 

C.  C.  95;  Kirby  v.  Hewitt,  2G  Barb.  &  Co.,  or  A.  for  self  and  partners,  be- 

607;  Ostrom  v.   Jacobs,  9  Met.  454;  cause  it  cannot  be  known  who  are 

Norton    v.    Thatcher,    8    Neb.    186;  the  &  Co.  from  such  signatures,  and 

Crouch  V.  Bowman,  3  Humph.  209;  the  other  partners  can  have  no  in- 

Markham  v.  Hazen,  48  Ga.  570;  Kirk  junction    or     dissolution    for    such 

V.  Blurton,  9  M.  &  W.   284;  12  L.  J.  cause.  In  Kirku.  Blurton,  9  M.  &  W. 

Ex.  U? ;  Gordon  v.  Bankstead,  37  111.  284  ;  12  L.  J.  Ex.  117,  where  the  firm 

147;  Tilford  u.  Ramsey,  37  Mo.  563,  name  was  John  Blurton,  a  bill  signed 

567;  Palmer  v.  Stephens,  1  Den.  471;  John  Blurton  &  Co.  was  held  not  to 

Moffat  V.  McKissick,  8  Baxter,  517;  bind  the  firm.     In  Royal  Canadian 

Royal  Canadian  Bank  v.  Wilson,  24  Bank  v.  Wilson,  24  Up.  Can.  C.  P. 

Up.  Can.  C.  P.  362.     And  see  McLin-  362,  a  draft  drawn  on  Wilson,  Moul 

den  V.   Wenthworth,    51   Wis.    170,  &  Co.  and  accepted  in  that  name  by 

where,  however,  the  payee  knew  of  one  partner,  when  the  firm  name  was 

tlie  want  of  authority;   Heenan  v.  J.  S.  Wilson  &  Co.,  and  the  above 

Nash,  8  Minn.  407.  name   was    not   adopted    until  two 

2See§441.  In  Marshall  r.  Colraan,  months  later,  was  held  not  to  bintl 

2  Jac.  &  W.   266,  267-8,   Lord  Eldon  the  firm ;   the    partner   had    signed 

said  that  if  the  agreed  firm  name  for  bis  private  purposes, 
was  A.,  B.,  C.  &  D.,  it  was  a  breach 

207 


§  200.  NATURE  AND  FORMATION. 

It  may  be  stated,  as  a  general  principle,  that  a  firm  is  not 
liable  upon  mercantile  paper,  unless  it  purports  to  bind  the 
firm,  either  by  the  use  of  the  individual  names  or  the  firm 
name.^  But  a  bill  on  the  firm  in  the  wrong  name  and  ac- 
cepted in  the  right  name  is  binding;^  and  a  bill  drawn  by  a 
firm  and  issued  by  its  successor  in  business,  under  a  changed 
name,  after  the  death  of  one  partner,  binds  the  new  firm.' 

A  receipt  by  a  partner  in  his  own  name  in  relation  to  the 
joint  business  binds  the  firm.* 

§  200.  Individual  names  instead  of  firm  name. —  We  have 
elsewhere  seen  that  a  note  signed  by  each  partner,  if  made 
for  a  partnership  purpose,  binds  the  firm.*  So  a  single  part- 
ner who,  instead  of  signing  the  name  of  the  firm  which 
represents  all  the  members,  signs  the  individual  names 
represented,  binds  the  firm  the  same  as  if  he  had  used  the 
representative  name.  This  is  true  in  case  of  conveyances, 
and  is  true  in  case  of  executory  contracts  creating  a  lia- 
bility, provided  the  firm  received  the  benefit  of  the  consider- 
ation or  if  the  firm  has  no  name.  Further  than  this  the 
cases  do  not  yet  seem  to  go;  and  it  must  be  remembered  that 
he  binds  them  jointly  and  not  severally,  for  no  partner  is 
the  several  agent  of  each  member.^ 

1  See  §g  436-454.  GaflF,  44  111.  510,  a  delivery  and  bill  of 

2  Lloyd  V.  Ashby,  2  B.  &  Ad.  23;    sale  to  one  partner  of  a  steamboat 
Carney  v.  Hotchkiss,  48  Mich.  276.        contracted  to  be  bought  by  the  firm. 

s  Usher  v.   Dauncey,  4  Camp.    97.  ^^453^ 

<  Wiilet  V.  Chambers,  Cowp.  814;  ^Qahvay    v.    Matthew,     1    Camp. 

Brown  v.   Lawrence,    5  Conn.    897,  40a ;  Norton  u.  Seymour,  3  C.  B,  792; 

where  one  partner  receipted  in  his  Richardson  r.  Huggius,  23  N.  H.  106; 

own  name  for  notes  to  be  collected  Patch  v.  WJieatland,  8  Allen,  102,  a 

and    the   proceeds  credited    on  the  mortgage    of     a    ship;    Holden    v, 

bailor's  debt  to  the  firm;  Tomlin  v.  Bloxum,  35  Mins.  381,  a  note  for  a 

Lawrence,  3  Moo.  &  P.  555,  a  draft  by  pui'chase    of    goods    for  the    firm ; 

a   partner   in    his  own  name   on  a  Crouch  v.  Bowman,  3  Humph.  209, 

debtor  of  the  firm,  accepted  by  the  a  note  for  a  purchase,  holding  that 

debtor,  firm  cannot  sue  until  after  the  goods   must  be  proved  to  have 

Ihe  draft  has  been  dishonored  by  the  gone  to  the  firm's  use.     McGregor  v. 

debtor;  Bisel  v,  Hobbs,  6  Blackf.  479,  Cleveland,  5  Wend.  475,  here  notes 

a  receipt  for  a  quantity  of  corn  is  signed  by  one  partner  in  the  name  of 

evidence  of  delivery ;    Byington  v.  F.  &  R,  Cleveland  had  been  ratified 


o 


08 


THE  FIRM  NAJME.  §  201. 

In  Norton  v.  Seymour,  3  C.  B.  792/  Tliomas  Seymour  and 
Sarah  Ayres  were  in  partnership  as  Seymour  &  Ayres,  and  Seymour 
signed  a  note  in  the  individual  names  of  the  partners,  and  it  was 
held  good,  Wilde,  C.  J.,  saying:  "  The  note  was  signed  in  the  names 
of  Seymour  &  Ayres  with  the  addition  of  their  respective  Christian 
names;"  and  Manle,  J.,  saying:  "  I  should  hesitate  to  say  that  one 
of  two  partners  could  not  bind  the  other  by  signing  the  true  names 
of  both  instead  of  the  fictitious  name.  That,  however,  is  not  the 
question  here."  In  this  case,  also,  the  firm  seem  to  have  received 
the  consideration  of  the  note. 

§201.  If  no  name  lias  been  adopted. —  If  no  name  has 
been  adopted  by  agreement  or  usage  it  is  not  necessary  that 
a  partner,  in  order  to  perform  a  partnership  act,  should  use 
the  individual  names  of  all  the  partners,  but  any  name  may 
be  used  by  him  by  which  an  intention  to  bind  the  firm  ap- 
pears. Hence,  if  there  is  no  adopted  firm,  the  partner  con- 
tracting or  purchasing,  giving  a  note  signed  in  the  name  of 
himself  &  Co.,  sufficiently  expresses  that  it  is  given  for  the 
firm; '^  or  may  use  his  own  name  alone.^  As  where  a  partner 
signed  a  written  contract  for  a  purchase  of  goods  for  the 
firm  in  his  own  name,  the  firm  having  no  name,  the  seller 
may,  by  oral  evidence,  show  that  he  intended  to  give  credit 
to  the  firm;  *  or  adopt  a  fictitious  name,  as  where  the  acting 
partner  gave  a  note  signed  Atlantic  Furniture  Co.,  the  co- 

by  the  other,  and  the  note  in  question  Be  Warren,  3  Wai'e,  322 ;  Ee  Thomas, 

was  signed     "Frederick    Cleveland  17  Bank r.  Reg.  54;  8  Biss.  139. 

and  Rufus  Cleveland,"  and  while  it  is.  c.  16  L.  J.  C.  P.    100;  11  Jur. 

does  not  appear  that  the   firm  re-  812  (1847). 

ceived  the  consideration,  it  also  does  2  Austin   v.    Williams,    2    Oh.    61; 

not  appear  that   they  had  adopted  Aspinwall    v.    Williams,    1    id.    84; 

any  firm  name.  Kitner  v.  Whitlock,  Kinsman  v.  Castleman,  1  Mon.  (Ky.) 

88  111.  513,  on  notes;  Maiden  v.  Web-  210;  Drake   v.  Elwyn,  1  Caines,  184; 

8ter,  30  Ind.  317;  Nelson  v.  Neely,  63  Brown  v.  Pickard  (Utah),  9  Pac.  R. 

Ind.  194  ;  Iddings  v.  Pierson,  100  Ind.  573.      • 

418;   Crozier  v.  Kirker,   4   Tex.  252;  s  Sage  r.  Sherman,  2  N.  Y.  417. 

51  Am.  Dec.  724 ;  Getchell  v.  Foster,  ^Getchell  v.  Foster,  106  Mass.    42. 

106  Mass.  42;  Austin   v.  Williams,  2  It    must   not  be    forgotten    that    if 

Oh.    61  {dictum);  Ex  parte  Bncklej,  there  is  a  firm  name  a  partner  can- 

14  M.  &  W.  469 ;  1  Ph.  562 ;  s.  c.  as  not  cast  his  own  loans  made  in   his 

Ex  parte  Clarke,  De  Gex,  153;  Ex  own  name  upon  the  firm  by  declar- 

jjar^e  Stone,  L.  R.  8  Ch.   App.   914;  ing  they  are  for  the  firm.     Uhler  u. 
Vol.  1  —  14                             209 


§201. 


NATURE  AND  FORJIATION. 


partnership,  though  not  having  concurred  in  the  name,  are 
bound  by  the  note.^  Or  if  goods  for  the  firm  are  sold  and 
charged  and  invoiced  to  one  partner  &  Co.,  it  is  a  i^artner- 
ship  debt,  though  no  note  was  given.  ^ 

But  if  the  partners  have  a  name,  no  such  hberty  can  be 
taken  without  an  assent  or  habit;  hence,  if  a  firm  has 
adopted  the  name  of  John  Blurton,  one  of  the  partners,  a 
bill  or  indorsement  by  the  other  partner  in  the  name  of 
John  Blurton  &  Co.  is  not  binding  on  the  firm  in  the  hands 
of  an  indorsee.''  Hence,  a  note  or  obligation  in  the  name 
of  one  partner  is  his  individual  debt.* 


Browning,  28  N.  J.  L.  79;  Dryer  v. 
Sander,   48  Mo.    400;  nor  bind  the 
firm  on  negotiable  paper  in  his  own 
name,  nor  upon  a  chattel  mortgage, 
Clark  V.   Houghton,    13    Gray,    38; 
Seekel  v.  Fletcher,   53  Iowa,  330,  a 
sale  to  two  as  partners  and  purchase 
money  note  signed   by  one,  but  in- 
tended and  accepted  as  binding  both. 
In  Drake  v.  Elwyu,  1   Caines,  184, 
the  persons  Elwyn  and  P.  Whittaker 
and  S.  Whittaker  were  sued  upon  a 
note  signed  Elwyn  &  Co.  ;  their  busi- 
ness was  sometimes  called  Whitta- 
ker's  Store,  sometimes  Elwyn's  Store 
and  sometimes  Elwyn's  &  Whitta- 
ker's  Store.     It  was  held  that,  as  the 
signature  imported  a    partnership, 
and  it  being  proved  that  the  defend- 
ants were  partners,  the  doubt   being 
as  to  the  name,  it  is  to  be  presumed 
that  Elwyn  &  Co.  was  the  name  of  the 
firm,  so  as  to  cast  on  the  defendants 
the  burden  of  proving  what  it  was  if 
a  different  name  existed.     In  Bar- 
croft  V.  Haworth,  29  Iowa,  462,   it 
was  said  that  if  it  was  intended  to 
bind  the  firm,  any  signature  would 
suffice,  and  the  firm  name  need  not 
be  used ;  and  therefore,  where   two 
partners  signed  and  a  third  assented, 
a  fourth  partner  may  be  shown  to  bo 


bound  by  proof  of  intention  to  bind 
the  firm  and  credit  given  on  the  faith 
of  this  intention.  But  in  this  case  it 
was  clear  that  there  was  no  firm 
name,  and  I  submit  that  the  case 
can  only  be  sustained  for  that  reason 
or  in  case  the  firm  got  the  benefit  of 
the  note. 

1  Holland  v.  Long,    57  Ga.  86,  40. 

2  Crary  v.  Williams,  2  Oh.  65.  And 
see  Baring  v.  Crafts,  9  Met.  380. 

3  Kirk  V.  Blurton,  9  M.  &  W.  284; 
12  L.  J.  Ex.  117,  In  this  case,  Drake 
V.  Elwyn,  1  Caines,  184,  supra,  was 
cited  in  argument,  and  Baron  Alder- 
son  said  that  doubt  was  not  intended 
to  be  thrown  upon  that  decision. 

4  In  Haskell  v.  Champion,  30  Mo. 
136,  where  B.  F.  C.  Champion,  a 
member  of  Champion  &  Co.,  signed 
a  note  in  his  own  name,  B.  F.  C. 
Champion,  and  after  procuring  in- 
dorsers  on  it  added  "&  Co."  to  his 
signature,  the  indorsers  were  held  to 
be  released.  It  was  said  on  page  189 
that  had  the  note  been  for  a  debt 
due  by  Champion  &  Co.  it  does  not 
follow  that  they  would  not  have 
been  liable,  for  a  partner  can  no 
more,  by  misnaming  his  firm,  obtain 
an  advantage  than  individuals.  Tlie 
only  proper  explanation  of  this  die- 

210 


THE  FIRM  NAME.  §  202. 

§  202.  immaterial  deviation  from  true  name  by  as- 
sent.—  The  doctrine  is  further  hmited  in  that  if  a  name 
is  used  varying  from  the  true  designation  in  so  shght  a  way 
that  the  deviation  appears  casual  rather  than  intentional,  it 
may  be  left  to  the  jury  to  say  whether  there  was  any  sub- 
stantial difference. 

The  leading  case  upon  this  is  Faith  v.  Richmond,  11  A.  &  E. 
330;  3  P.  &  D.  187  (1840),  where  three  partners,  Richmond,  Bar- 
boui  and  Hannay,  carried  on  bxsniess  under  the  name  of  "  The  New- 
castle &  Sunderhmd  Wall's  End  Coal  Co.,"  and  Richmond  signed 
a  note  "  For  the  Newcastle  Coal  Co.,  William  Richmond,  Man- 
ager."    Lord  Denman  left  it  to  the  jury  to  say  whether  or  not  the 
style  used  was  one  which,  though  slightly  varying  from  that  of 
the  firm,  was  essentially  the  same,  and  a  verdict  for  the  defendant 
was  upheld,  there  being  no  authority  to  make  this  specific  note  or 
to  use  such  name.     It  is  possible  that  a  verdict  for  the  plaintiff 
would  have  been  set  aside,  for  in  Kirk  v.  Blurton,  9  M.  &  W.  284; 
12  L.  J.  Ex.  117,  where  Blurton   and   Habershon  were   partners 
under  the  name  of  John  Blurton,  and  Habershon  drew  a  bill  in 
the  name  of  John  Blurton  &  Co.,  payable  to  their  own  order,  and 
indorsed  it  John  Blurton  &  Co. —  probably  for  his  own  use  —  the 
bill  and  indorsement  were  held  not  binding,  Rolfe,  B.,  sayiug  the 
implied  authority  of  a  partner  is  to  bind  in  the  name  of  the  part- 
nership only,  and  it  is  better  to  adhere  to  this  rule  and  not  to 
measure  deviations.     And  ALDERSOisr,  B.,  said:  "In   those  cases 
where  the  question  has  been  left  to  the  jury,  it  has  been  whether 
there  was  substantially  any  difference  between  the  signature  and 
the  name  of  the  partnership.     For  instance,  if  the  signature  were 
Coal  &  Co.  and  the  true  designation  of  the  partnership  were  Cole 
&  Co.,  it  would  no  doubt  be  for  the  jury  to  say  whether  it  was  in 
substance  the  same."  Yet  Martin,  B.,  in  5  H.  &  N.,  517,  thinks  that 
it  should  have  been  left  to  the  jury  to  say  whether  John  Blurton 
and  Johu  Blurton  &  Co.  are  not  substantially  the  same.     So  where 
a  firm's  name  is  Charles  G.  Ramsey  &  Co.  and  a  partner  signed  a 
notetChas.  G.  Ramsey  &  Co.,  it  will  be  left  to  the  jury  to  say 
whether  there  is  any  substantial  difference  between  the  name  and 
signature.'     Where  the  name  of  a  firm  is   John  Winship,  firm 

fwm  is  that  the  firm  would  be  liable  iTilford  v.  Ramsey,  37  Mo.  563, 
upon  the  original  consideration  and  567 ;  Kinsman  v.  Dallam,  5  Mon. 
not  upon  the  paper.     See  §  440.  (Ky.)  383.     And  see  Mifliin  v.  Smith, 

211 


§  204.  NATURE  AND  FORMATION. 

paper  for  a  loan  signed  in  the  name  of  John  Winship,  Jr.,  was 
held  binding; '  and  where  a  firm's  name  was  Elias  Maloue,  and  the 
managing  partner  signed  a  note  for  a  loan,  "  Elias  Malone  &  Co., 
Still  House,"  to  distinguish  it  from  his  individual  paper,  the  devi- 
ation was  regarded  as  immaterial,  but  the  firm  got  the  benefit.* 

§203.  Other  name  by  assent. —  If  there  is  a  habit  or 
assent  of  the  firm  or  of  the  managing  partner  shown  to  use 
another  than  the  agreed  name,  either  generally  or  for  par- 
ticular purposes,  such  use  of  the  name  by  one  partner  binds 
the  firm.' 

§  204^.  Particular  authority  executed  in  wrong  name. — 
If  a  partner  is  authorized  by  his  firm  to  make  a  particular 
note  or  bill,  and  does  so  in  a  wrong  name  or  in  his  own 
name,  a  person  taking  the  paper  on  the  credit  of  the  firm  is 
entitled  to  treat  the  transaction  as  by  the  firm  in  such  name. 

In  Reimsdyk  v.  Kane,  1  Gall.  630,  a  partner  was  authorized  to 
draw  on  a  particular  house  to  take  up  money,  and  did  so,  but  signed 
his  own  name,  directing  the  bill  to  be  charged  to  account  of  the 
firm,  and  it  was  held  that  equity  would  enforce  it  against  all  in 
favor  of  a  payee  who  had  trusted  the  joint  credit,  and  the  bill 
would  be  deemed  guarantied  as  to  acceptance  and  payment  by  the 
firm. 

17  S.   &  R.   165,  where  the  agreed  vision  172,  a  name  always  used  be- 

name  was  Nathan  Smith,   and  the  fore  the  world,  was  in  giving  notes 

contract  was  signed  N.  Smith,  but  always  signed  merely    "  Div.    173." 

the  business  was  done  in  the  latter  Mifflin  v.    Smith,    17   S.    &  R.    165, 

name.  where  the  agreed  name  of  a  firm, 

1  Winship  v.  Bank  of  U.  S.  5  Pet.  consisting  of    an    ostensible  and  a 

539.     No  notice  was  taken  of  this  dormant      partner,      was      Nathan 

point  in  the  case.  Smith,  but  the  business  was  carried 

^Moffatv.  McKissick,  8  Baxter,  517.  on  in  the  name  of  N.  Smith.     Pal- 

8  Williamson  v.   Johnson,  1  B.  &  mer  v.  Stephens,  1  Den.  471,  where 

C.  146;  2D.  &  R.,  281  (explained  as  a  clerk  signed  a  note  G.  Stephens, 
resting  upon  this  ground  in  Faith  v.  where  the  firm  name  was  G.  Steph- 
Richmond,  11  A.  &  E.  389;  3  P.  &  ens  &  Sons ;  this  was  said  to  be  valid 

D.  187),  where  the  managing  part-  if  all  the  members  had  assented  to 
ner  of  Habgood  &  Co.  was  in  the  the  use  of  such  name,  or  it  may  be 
habit  of  indorsing  in  the  name  of  if  the  managing  partner  assented, 
Habgood  &  Fowler,  a  former  firm,  otherwise  not.  Folk  v.  Wilson,  21 
Mellendy  v.  New  Engl.  Prot,  Union,  Md.  538,  where  firm's  notes  in  the 
36  Vt.  31,  where  the  name  of  the  name  of  one  partner  had  been  recog- 
New  England  Protective  Union,  Di-  nized, 

212 


THE  FIRM  NAME,  §  205. 

So  in  Farmers'  Bank  v.  Bayless,  41  Mo.  274,  287,  it  was  said  by 
Holmes,  J.,  that  if  the  firm  authorized  a  note  it  might  be  its  note 
by  one  name  as  well  as  by  another,  and  was  a  loan  to  the  firm,  but 
the  burden  of  proof  of  this  was  on  the  plaintiff. 

So  in  Morse  v.  Richmond,  97  III.  303  (aff.  6  111,  App.  166), 
where  a  partner  holding  the  title  to  real  estate  was  authorized  to 
borrow,  and  signed  his  own  name  as  "  trustee." 

§  ^05.  Credit  to  firm  under  a  wrong  name.—  If  a  wrong 
name  was  used  in  the  exercise  of  a  proper  power,  and  the  firm 
received  the  benefit  of  the  act,  and  the  other  party  gave  credit  to 
the  firm,  believing  himself  to  be  dealing  with  it,  the  partners  are 
liable  on  the  original  consideration. 

In  Bacon  v.  Hutchings,  5  Bush,  595,  D,  &  D.  dissolved  and 
shortly  afterwards  formed  with  H.  and  W,  a  new  firm  of  H,,  D,  &  Co., 
and  in  order  to  raise  money  a  bill  was  drawn  without  D.'s  knowledge 
in  the  name  of  D.  &  D.,  indorsed  by  H.,  and  the  new  firm  got  the 
proceeds  and  the  transaction  was  entered  on  its  books.  The  new 
firm  was  held  liable  on  the  draft,  on  the  ground  that  in  the  exercise 
of  the  power  to  make  bills  to  carry  on  the  business,  whether  the 
firm  style  or  some  other  style  is  used,  does  not  change  the  rights 
of  creditors  or  responsibility  of  the  partners,' 

But  this  principle  will  not  apply  where  the  promise  is  that 
of  the  individual  and  does  not  purport  to  be  a  partnership 
act,  no  firm  name  of  any  kind  being  used;'^  else  he  might 
cast  upon  the  firm  a  loan  made  on  his  own  note  by  declaring 
it  to  be  for  the  firm.'    Nor  if  the  note  is  under  seal,*  And  if 

iThis  case  should  have  been  de-  2 g§  436-447.  Goldie  v.  Maxwell,  1 

cided  on  the  ground  that  the  firm  Up,  Can.  Q.  B.  424,  anote  in  individ- 

was  liable  on  the  original  considera-  ual  name  for  partnership  purposes; 

tion  and  not  on  the  paper,  adistinc-  s.  P.  Re  Herrick,  13  Bankr.  Reg.  312; 

tion  which  the  court  recognized  in  Strauss  v.  Waldo,  25  Ga.   641.    See 

Macklin   v.    Crutcher,  6  Bush,   401,  Butterfield    v.    Herasley,    12    Gray, 

Barcrof t  v.  Haworth,  29  Iowa,  463 ;  226. 

Farmers'  Bk.  v.  Bayliss,  41  Mo.  274,  3  Uhler  v.  Browning,  28  N.  J.  L. 

287,  given  more  fully  elsewhere  in  79. 

this  chapter,  may  also  be  regarded  as  <  §    438 ;   Harris   v.    Miller,  Meiga 

illustrations  of  this  rule,  as  may  also  (Tenn.),  158;  33  Am.  Dec.  138;  Will- 

the  cases  under  §  451,     Gage  v.  Rol-  iams  v.  Gillies,  75  N,  Y,  197  (rev.  13 

lins,  10  Met.  348,354;  Weaver  u.  Tap-  Huu,  422);  Patterson  v.  Brewster,  4 

scott,  9  Leigh  (Va.),  424.     And  see  Edw.  Ch.  353,  355;  U.  S.  v.  Astley,  3 

Miner  V,  Downer,  19  Vt,  14;  20  id,  461,  Wash.  C.  C,  508. 

213 


§  206.  NATURE  AND  FORj^IATION. 

the  articles  provided  that  A.,  of  A.  &  Co.,  shall  furnish  all 
the  funds  and  shall  provide  them  by  his  individual  note,  on 
which  he  alone  shall  be  liable,  he  alone  is  liable  on  the  note 
signed  by  him,  though  he  declare  that  it  binds  the  firm.^ 

So  where  a  partner  orders  goods  for  the  firm  in  the  name  of  S.  & 
Co.,  instead  of  the  firm  name,  H.  &  S.,  this  is  only  evidence  tending 
to  show  that  no  contract  was  made  with  H.  &  S.' 

If  there  had  been  two  different  firms  a  note  in  the  name  of  one 
cannot  be  sued  on  as  that  of  the  other.' 

§206.  Where  the  partners  are  plamtifFs. —  A  promise 
may  be  made  to  one  partner  with  the  intent  that  the  firm 
shall  be  beneficiary  of  the  contract.  In  these  cases  all  the 
partners  may  sue  upon  it;  and  so  if  one  partner  misappro- 
priates the  joint  property,  or  makes  a  contract  in  regard  to 
it,  all  the  partners  may  sue.* 

»  Dryer  v.  Sander,  48  Mo.  400.  «  Miner  v.  Downer,  19  Vt.  14;  20  id. 

'Hancock  v.  Hintrager,  60  Iowa,    461,  and  §  196. 
874.  ^  See  under  Remedieai 

2U 


PART  II. 

CONDUCT  OF  THE  BUSINESS. 


CHAPTER  I. 

ARTICLES  OF  PARTNERSHIP. 

§  207.  The  contract  between  the  partners  is  the  guide  to 
their  powers,  rights,  duties,  and,  except  as  modified  by  the 
apparent  scope  of  the  business,  of  their  liabilities.  Hence 
the  importance  of  carefully  anticipating  and  providing 
against  possibilities  of  dispute.  This  contract  is  never 
deemed  to  contain  all  the  rules  for  guiding  conduct  on  the 
principle  of  expressio  unius  est  exclusio  alterius,  but  to 
be  an  enumeration  of  those  as  to  which  the  law  is  silent  or 
as  to  which  it  is  desired  to  alter  usual  legal  rules. 

§  208.  Statute  of  frauds. —  A  contract  of  present  part- 
nership, or  for  the  transfer  of  a  share  in  one,  need  not  be  in 
writing  under  the  statute  of  frauds.  ^  Yet  where  it  appeared 
that  the  contract  could  not  be  performed  within  a  year  it 
was  held  void.^  And  if  the  contract  in  terms  is  for  a  part- 
nership for  more  than  a  year,  the  statute  of  frauds  was  held 
to  apply.'  And  so  if  the  contract  be  to  procure  the  admis- 
sion of  a  person  into  a  firm,  and  is  not  to  be  performed 

1  Re  Great  Western  Tel.  Co.  5  Biss.  action  for  an  account  cannot  be  de- 

363;  Smith  v.  Tarlton,   2  Barb,  Ch.  feated  in  the  latter  state  for  such 

336;  Coleraau  v.  Eyre,  45  N.   Y.  38.  reason.      Young  v.   Pearson,  1   Cal. 

Certainly  so  where    the  enterprise  448. 

may   be  completed   within  a  year.  2  Jones  v.  McMichael,  12  Rich.  L. 

Jordan  v.    Miller,  75  Va.  442.     And  176. 

if  formed  in  a  state  where  it  must  be  3  Morris  v.  Peckham,  51  Conn.  128; 

written,  but  is   to  be   executed  in  a  Williams  v.  Jones,  5  B.  &  C.  108.  But 

state  where  this   is  not  required,  an  see  McKay  v.  Rutherford,  13  Jur.  21. 

215 


§  209.  CONDUCT  OF  THE  BUSINESS. 

■within  a  year,  it  must  be  proved  by  writing;'  or  for  a  part- 
nership not  to  begin  within  a  year.^ 

On  an  oral  contract  to  sell  half  of  a  patent  right,  and  to  go  into 
partnership  for  more  than  a  year  with  the  huyer,  a  mere  written 
assignment  of  the  half  of  the  patent  is  not  a  memorandum  of  the 
partnership,  nor  is  it  performance.' 

§  209.  A  verbal  contract  of  partnership  for  more  than  a 
year,  if  acted  upon,  and  business  conducted  under  it,  is  valid. 
As  where  a  person  leased  his  hotel  to  another  in  writing, 
and  then  really  formed  a  ten- year  partnership  with  him,  the 
rent  to  be  payable  out  of  the  profits,  the  fact  of  a  partner- 
ship between  the  parties  can  be  shown  as  a  defense  to  an 
action  at  law  for  the  rent.* 

Where  a  partnership  to  work  a  mine  was  formed  orally,  and  two 
of  the  partners  entered  upon  and  worked  it,  a  purchase  of  the  prop- 
erty by  a  third  partner  was  held  to  inure  to  their  benefit,  the 
statute  of  frauds  not  applying  because  of  performance.* 

So  where  C,  on  buying  a  third  interest  in  a  stage  company,  agreed 
that  S.  should  have  half  his  interest,  part  of  the  consideration  being 
the  extinguishment  of  a  debt  due  by  C.  to  S.,  and  thereupon  all 
the  partners  entered  into  written  articles  in  which  S.  &  C.  were  de- 
scribed as  owners  of  a  third  interest,  and  to  share  in  the  profits, 
thus  recognizing  S.  as  an  owner,  it  was  held  that  all  the  delivery 
possible  had  been  made  by  C.  to  S.' 

1  Whipple  V.  Parker,  29  Mich.  369.    profits  and  losses  founded  on  mutual 

2  Williams  v,  Jones,  5  B.  &  C.  108,    promises. 

110.  For  the  subject  of  the  statute  of  3  Morris    v.    Peckham,    51    Conn, 

frauds  as  applied  to  real  estate,  see  128. 

§301.  In  Huntley  V.  Huntley,  114  U.  'iPicou.   Cuyas,  47  Cal.  174.     See, 

S.  394,  the  query  was  raised  whether  also,  Baxter  v.   West,  1   Dr.  &  Sm. 

the  sale  of  a  share  in   a  partnership  173;   W^illiams  u.  Williams,  L.    R.  2 

was  a  contract  for  the  sale  of  goods,  Ch,  App.  294;  Burdon   v.  Barkus,  4 

wares  or  merchandise  of  the  value  DeG.  F.  &  J.  42 ;  Gates  v.  Fraser,  ft 

of  £10  or  upwards.     But  in  Coleman  111.  App.  229;  Southmayd  v.  South- 

t?.  Eyre,  45  N.  Y.  C8,  an  oral  contract  mayd,   4    Montana,    100;     Burn    v. 

to  take  a  share  in  the  interest  of  one  Strong,    14  Grant's  Ch.    (Up.   Can.) 

wlio    was    jointly    interested    with  651. 

others  in  a  shipment,  and  to   share  'Burn  v.    Strong,  14  Grant's   Ch. 

profits  and  losses,  was  held  not  to  be  (Up.  Can.)  651. 

a  contract  of  sale  within  the  statute  f"  Huntley  v.   Huntley,    114  U.    S. 

of  frauds,  but  an  agreement  to  share  394. 

216 


ARTICLES  OF  PARTNERSHIP.  §211. 

§  210.  Oral  evidence. —  We  will  first  consider  some  gen- 
eral rules  of  construction  of  the  articles  and  then  proceed  to 
consider  the  most  important  of  what  are  termed  the  usual 
clauses.  The  application  of  oral  evidence  to  the  articles  is 
like  that  in  case  of  any  other  written  contract;  all  prior  ne- 
gotiations are  merged  in  the  writing,  and  it  cannot  be  con- 
tradicted or  varied  by  oral  agreements  except  to  the  extent 
that  it  imports  a  receipt. 

Thus,  articles  by  which  a  sale  by  an  existing  firm  to  an  incom- 
ing partner  of  half  of  their  business  and  half  of  a  contract  of 
articles  for  future  delivery,  merges  a  parol  guaranty  that  the  arti- 
cles would  sell  at  a  stated  price.'  An  agreement  in  the  articles 
that  one  partner  shall  pay  in  his  agreed  capital  when  needed  can- 
not be  shown  by  parol  not  to  be  payable  until  the  other  partner's 
contribution  was  all  in."  But  a  recital  in  the  articles  that  each 
has  paid  in  so  much  of  his  share  of  capital  is  no  estoppel  and  may 
be  explained  or  even  contradicted,  like  any  other  receipt.' 

§211.  Altered  by  conduct  and  construed  by  practice. — 

As  any  written  contract,  no  matter  how  stringent,  may  be 
superseded  or  qualified  by  subsequent  oral  contract,  so  any 
part  of  the  partnership  articles  may  be  varied  or  rescinded 
by  the  consent  of  all  the  partners,  and  such  consent  may  be 
shown  by  a  course  of  conduct  or  established  and  uniform 
usage,* 

But  property  rights  are  not  to  be  deemed  as  affected  by 
mere  intendment,  as  where  the  share  of  a  partner  dying 
may  be  bought  at  the  last  semi-annual  valuation  and  the 
partners  afterwards  take  their  accounts  yearly  by  agree- 
ment, yet  on  death  the  share  must  be  reckoned  up  to  what 
would  have  been  the  last  semi-annual  settlement.* 

1  Evans  v.  Hanson,  42  111.  234.  Pilling,  3  DeG.  J.  &  Sm.  163 ;  Hall  v. 

ZReiteru.  Morton,  96  Pa.  St.  229,  Sannoner,  44  Ark.  34;  Boisgerard  v. 

241.  Wall.  Sni.  &  Mar.  Ch.  404 ;  McGraw 

8  Lowe  V.  Thompson,  86  Ind.  503.  v.  Pulling,  1  Freem.  (Miss.)  Ch.  357; 

4  Const  u.  Harris,  Turn.  &  R.  496,  Thomas    v.    Lines,    83    N.    Ca.   191; 

517;  Coventry  v.  Barclay,  3  D.  J.  S.  Henry  v.  Jackson,  37  Vt.  431. 
820,  on  app.  f r.  33  Beav.  1 ;  England       »  Lawes  v.  Lawes.  9  Ch.  D.  98. 
V.    Curling,  8  Beav.    129 ;  Pilling  v. 

217 


§  212.  CONDUCT  OF  THE  BUSINESS. 

Thus,  if  the  parties  agree  that  no  one  of  them  shall  draw  or  ac- 
cept a  bill  of  exchange  in  his  own  name  without  the  concurrence 
of  all  the  others,  yet  if  they  afterwards  slide  into  a  habit  of  per- 
mitting one  of  them  to  draw  or  accept  bills  without  the  concur- 
rence of  the  others,  the  court  will  hold  that  they  have  varied  the 
terms  of  the  original  agreement  in  that  respect.'  So  if  the  articles 
forbid  sales  on  credit,  but  were  violated  constantly  by  one  partner 
with  the  concurrence  and  acquiescence  of  the  others,**  or  where  the 
salary  of  the  active  partner  was  fixed  at  $1,000,  and  after  a  great 
increase  in  the  business  and  changes  in  the  firm  the  salary  was 
charged  on  the  books  at  the  rate  of  $5,000,  a  settlement  on  this 
basis  will  not  be  disturbed/  And  where  the  partners  were  to 
contribute  to  profits  and  losses  in  certain  proportions,  but  the  man- 
ager had  received  shares  of  profits  but  never  had  been  required  to 
contribute  to  losses,  the  articles  are  qualified  and  no  longer  bind 
him  in  this  respect.*  Where  the  articles  of  partnership  between 
attorneys  excluded  the  pending  business  of  the  partner  who  took 
the  other  into  partnership,  but  the  former  allowed  the  latter  to 
prepare  and  argue  the  old  cases  and  make  charges  as  to  them  on 
the  books  of  the  firm,  this  acquiescence  will  prevent  his  claiming 
that  the  fees  are  not  a  partnership  demand." 

§  212.  provisions  not  acted  on.— So  a  provision  in 

the  articles  that  has  never  been  acted  upon  will  be  regarded 
as  expunged.  Thus,  in  Jackson  v.  Sedgwick,  1  Svvanst. 
4G0,  it  was  agreed  that  annual  settlements  should  be  had, 
and  in  case  of  death  an  allowance  to  the  representatives  in 
lieu  of  profits,  since  the  last  annual  account,  should  be 
made;  but  no  accounts  were  taken  for  several  years  and 
other  business  was  engaged  in,  to  which  the  agreement  could 
not  be  applied  with  justice,  it  was  regarded  as  waived.®    So 

1  Per  Lord  Eldon,  Const  v.  Har-  articles  provide  that  tlie  capital  or 
ris,  Turn.  &  R.  496,  523;  Gammon  v.  property  shall  belong  to  one  or  some 
Huse,  100  111.  234.       ,  of  the  partners  exclusively,  but  the 

2  Hall  V.  Sannoner,  44  Ark.  34;  subsequent  purchases  of  permanent 
Dow  V.  Moore,  47  N.  H.  419.  property  are  credited  to  such  part- 

3  Gage  V.  Parmalee,  87  111.  329.  ners  on  the  books,  thus  making  it  the 
<Ged(le3  v.  Wallace,  2  Bligh,  270.  property  of  the  firm.  See  Jiij  56,  59. 
*  Thrall    v.    Seward,    37  Vt.    573.       6  And  see  Simmons  u.  Leonard,  3 

Other    examples    occur   where   the    Hare,  581. 

218 


ARTICLES  OF  PARTNERSHIP.  §214. 

ill  Boyd  V.  Mynatt,  4  Ala.  Y9,  where  the  partnership  was 
unsuccessful  because  the  complainant  had  failed  to  furnish 
the  capital  he  had  agreed  to  contribute,  this  principle  was 
applied,  but  without  prejudice  to  an  action  at  law  for  the 
breach.^ 

§  213.  unanimous    assent    necessary. —  In  order    to 

change  the  articles,  whether  by  express  agreement  or  usage, 
the  unanimous  concurrence  or  consent  of  all  is  necessary.^ 

Thus,  in  Thomas  v.  Lines,  83  N.  Ca.  191,  where  the  will  of  one 
partner  left  to  legatees  his  interest  in  his  partnership,  and  it  was 
claimed  that  money  of  the  firm  in  the  testator's  drawer  was  not 
partnership  property,  and  a  tacit  understanding  was  sought  to  be 
introduced  that  each  partner  might  use  funds  collected  by  him  for 
his  personal  benefit,  to  modify  the  articles,  the  proof  was  excluded 
as  showing  a  mere  disregard  of  the  articles  by  one  or  more  of  the 
partners  while  still  in  force. 

And  if  a  change  is  proposed,  even  if  a  majority  have  the 
power  to  make  it,  notice  of  it  and  a  chance  to  be  heard 
should  be  given  to  all  the  partners,  otherwise  it  will  not 
bind  the  minority.' 

Where  the  articles  have  once  been  changed,  whether  ex- 
l)ressly  or  tacitly,  the  assignee  of  a  partner,  or  the  repre- 
sentatives of  a  deceased  partner,  are  bound  by  his  assent, 
and  cannot  require  the  firm  to  revert  to  the  original  pro- 
visions.* 

§  21-t.  suggested  restriction  of  above  principle.— As 

seen  by  the  outside  world,  the  powers  of  each  partner  are 
determined  by  the  apparent  scope  of  the  business  as  here- 
after explained,^  an  element  of  which  is  the  usage  of  the 
partners.  This  makes  a  distinction  possible;  a  unanimous 
assent  to  a  change  in  the  articles  is  necessary  inter  se, 

^Contra,  see   Smith    v.    Duke    of    Livingston  v.   Lynch,  4  Johns,  Ch. 
Chandos,  Barnardiston,  419 ;  a  Atk.    573.     And  see  §  434. 
458.  3  Const  v.  Harris,  Turn,  &  R.  496, 

2  Const  V.  Harris,  Turn.  &  R.  496,    524-5. 
517;    England  v.    Curling,    S  Beav.        4  Const  v.  Harris,  Turn.  &  E.  496, 
139;  Abbot  v.  Johnson,  32  N.  H.  9;    524, 

s§316. 
219 


§  215.  CONDUCT  OF  THE  BUSINESS. 

whether  shown  by  express  agreement  or  tacit  acquiescence 
with  knowledge;  but  as  to  the  outside  world,  who  can  judge 
only  by  appearances  and  deal  on  the  faith  of  them,  the  gross 
negligence  of  a  partner  in  permitting  a  usage  to  grow  up 
which  he  should  have  known  and  stopped  may  render  him 
liable  for  contracts  outside  of  the  agreed  scope  of  the  busi- 
ness, though  he  was  ignorant  of  them;  the  agreement  of 
the  articles  then  becomes  in  the  nature  of  a  secret  restric- 
tion upon  apparent  powers.^ 

For  example,  where  R.  and  L.  formed  a  partnership  to  sell  "  fer- 
tilizers on  consignment  alone,"  which,  of  course,  excluded  the 
power  to  purchase,  and  R.  for  two  years  had  negligently  permitted 
L.,  the  managing  partner,  to  purchase  fertilizers  on  the  firm's  ac- 
count for  resale,  R.  was  held  liable  to  the  seller,  the  court  saying 
that  holding  otherwise  would  be  to  reward  gross  negligence.'' 

§  215.  Ambiguities  construed  by  firm's  practice. —  In  case 
of  ambiguity  in  the  articles,  or  want  of  explicitness,  the  in- 
terpretation of  the  parties  as  shown  by  their  subsequent 
conduct  will  be  accepted  as  the  true  construction  and  in  aid 
of  the  intent.' 

As  where  au  annual  valuation  is  required  to  settle  the  accounts, 
and  for  many  years  it  is  made  in  a  particular  way  and  acted  upon 
by  all,  the  mode  thus  adopted  cannot  be  disputed  if  the  articles  are 
silent  or  even  if  inconsistent  with  them/ 

In  Ex  parte  Barber,  L.  R.  5  Ch.  App.  687,  the  habit  of  the  part- 
ners was  to  debit  bad  debts  to  the  profit  and  loss  account  of  the 
current  .year  when  the}'^  were  discovered,  regardless  of  the  year  in 
which  they  were  reckoned  as  assets;  one  partner  died  and  his  ac- 
count was  made  up  on  the  basis  of  the  accounts  of  the  j'ear,  and 
afterwards  some  of  the  accounts  of  that  year  were  discovered  to  be 
uncollectible,  but  the  executors  were  held  entitled  to  the  amount 
as  first  made  up  without  deduction  for  the  subsequently  discovered 
loss. 

lu  Moore  v.  Trieber,  31  Ark.  113,  partners  had  a  grocery  and 
dry  goods  business.     T.  was  a  partner  in  the  dry  goods  branch 

1  See  §  323.  Beacliani  v.    Eckford,  3  Sandf.  Ch. 

2  Ala.  Fertilizer  Co.  v.  Reynolds  &   116,  120. 

Lee,  79  Ala.  497.  *  Coventry  v.   Barclay,  3  D.  J.  S. 

»Gedde8  v.  Wallace,  2  Bli.  270,  297;   320. 

220 


ARTICLES  OF  PARTNERSHIP.  §  216. 

only,  separate  books  being  kept,  and  was  by  the  articles  to  receive 
half  the  cash  receipts  in  her  profits  and  the  balance  only  in  out- 
standing accounts.  A  custom  of  the  firm  to  credit  payments,  first 
to  accounts  for  groceries  and  the  balance  only  to  dry  goods,  never 
having  been  objected  to  by  T.,  is  presumed  acquiesced  in  by  her.^ 

§216.  Continue  in  force  if  firm  continues  after  term. — 

If  a  partnership  is  continued  after  the  expiration  of  the 
time  originally  contemplated,  or  is  dissolved  by  the  retire- 
ment or  addition  of  a  partner,  the  business  being  continued, 
the  continued  partnership  is  deemed  to  be  on  the  same  terms, 
as  far  as  applicable,  as  before,  except  that  it  becomes  a 
partnership  at  will,  and  all  the  provisions  of  the  original 
articles  which  are  consistent  with  a  continuance  of  the 
partnership  at  will  or  for  a  new  term,  if  so  agreed,  are  bind- 
ing on  the  members.'  Thus  of  provisions  for  compensating 
an  active  partner,  not  to  be  applicable  unless  profits  are  real- 
ized, the  restriction  applies  to  the  continued  firm.^  So  the 
arbitration  clause  continues  in  force  after  the  expiration  of 
the  original  term  if  the  business  continues;  ^  and  a  provision 
that  on  the  death  of  a  partner  before  the  expiration  of  the 
term  the  survivor  could  take  his  interest,  paying  £1,500  to 
his  executor,'  or  at  a  valuation,^  applies  to  the  continued 
partnership;  but  this  cannot  be  exercised  several  years  after 

1  It  is  to  be  remembered  that  the  10  Fla.  9 ;  Frederick  v.  Cooper,  3 
shares  of  partners  and  the  right  to  Iowa,  171,  183;  Sangston  v.  Hack,  53 
or  liability  for  interest,  shown  upon  Md.  173 ;  Blasdell  v.  Souther,  6  Gray, 
the  boolis  to  be  the  understanding  of  149;  Mifflin  v.  Smith,  17  S.  &  R.  165; 
the  firm,  are  as  conclusively  estab-  Bradley  v.  Chamberlin,  16  Vt.  613. 
lished  as  if  in  a  regular  contract.  See  Gould  v.  Horner,  12  Barb.  601. 
Stewarts.  Forbes,  1  Hall &Tw.  461;  3 Bradley  u  Chamberlin,  16  Vt. 
1  Macn.  &  G.  137.  618;  Boardmau   v.    Close,   44  Iowa, 

2  Cox  V.  Willougliby,  13  Ch.  D.  863;   428. 

Clark  V.  Leach,  32  Beav.  14  (aff'd  in  ^Qillett  v.  Thornton,  L.  R.  19  Eq. 

1  DeG.    J.    &  Sm.    409);  Austen  v.  599,    a    statute    having    made    this 

Boys,  24  Beav.  598  (aff'd  in  2  DeG.  &  clause  enforcible. 

J.    626);  Booth    v.    Parks,    1    Moll.  sCox  u.  Willoughby,  13  Ch.  D.  863, 

(Irish)  465 ;  Crawshay  v.  Collins,  15  not  following  Cookson  v.  Cookson,  8 

Ves.  318;  U.   S.   Bank  v.   Binney,  5  Sim.  529. 

Mason,  176,  185 ;  Stephens  v.  Orman,  6  Essex  v.  Essex,  20  Beav.  442. 

231 


§  217.  CONDUCT  OF  THE  BUSINESS. 

the  death ;  ^  and  if  partially  new  articles  are  drawn  up  the 
original  bind  pro  tanto."' 

So,  where  R.  contributed  a  sum  of  money  which  L.  agreed  to  in- 
vest in  cattle,  and  sell  them  at  the  end  of  a  j^ear,  on  a  division  of 
profits,  L.  guarantying  twenty  per  cent,  to  R.,  and  R.  continued 
to  advance  money  for  three  years,  all  subsequent  dealings  will  be 
referred  to  the  original  terms.* 

A  partnership  was  formed  to  dig  for  gold  on  one  property,  one 
partner  paying  all  expenses;  this  was  abandoned,  and  by  mutual 
consent  digging  was  resumed  on  another  lot.  The  same  terms  will 
be  presumed  to  govern.* 

So  if,  in  a  partnership  composed  of  an  active  and  a  silent  partner, 
the  active  partner  continues  business  after  the  expiration  of  the 
term  with  the  assets,  and  without  accounting,  it  is  not  a  dissolu- 
tion, and  the  silent  partner  will  share  as  under  the  original  agree- 
ment.* 

§  21 7.  So  of  a  new  firm. —  The  original  articles  may  thus 
run  through  two  or  three  changes  of  partnership  caused  by 
changes  of  members. 

Thus,  a  right  upon  the  death  of  either  of  three  partners  to  take 
the  whole  business,  paying  his  share  as  it  appeared  at  the  last  set- 
tlement, is,  after  one  has  died  and  his  share  has  been  thus  paid  off, 
applicable  as  between  the  two  survivors  who  had  continued  the 
business,  upon  the  death  of  one  of  them;*  and  where  F.  &  S.  en- 
tered into  written  articles,  then  F.  sold  his  interest  to  B.,  and  the 
firm  of  B.  &  S.  was  formed;  then  S.  sold  out  to  C,  and  B.  and  C. 
became  the  partners  in  the  concern,  the  original  articles  are  deemed 
to  be  still  in  force.'  And  where  the  active  partners  were  to  receive 
an  annual  compensation,  and  afterwards  an  inactive  partner  sold 
out  to  a  third  person,  who  allowed  the  business  to  continue  with- 

iSce  Yates  v.  Finn,  13  Ch.  D.  839.    as  to  surviving  partners  continuing 

2  Austen    v.    Boys,    24    Beav.    598   vt^ithout    settlement,  Foster  v.  Hall, 
(aff'd  in  2  DeG.  &  J.  G2G).  4  Humph.  (Tenn.)  346. 

3  Bobbins  v.  Laswell,  27  111.  365.  6  King    v.   Chuck,    17    Beav.    325 ; 
*  Burn   V.  Strong,    14  Grant's  Ch.    Robertson  v.  Miller,  1  Brock.  466. 

(Up.  Can.)  651.  ''Boardman  v.  Close,  44  Iowa,  428; 

» Parsons  v.  Hay  ward,  31  Beav.  199;    Sangston  v.  Hack,  52  Md.  173. 
aff'd  m  4  DeG.  F.  &  J.  474.     Contra, 

223 


ARTICLES  OF  PARTNERSHIP.  §  219. 

out  interruption,  the  compensation  must  be  allowed  as  under  the 
old  articles.* 

§  2 1 8.  Clauses  which  do  not  continue. —  On  the  other  hand, 
a  clause  requiring  a  partner  who  wishes  to  retire,  to  notify 
the  rest  a  certain  time  beforehand,  is  not  applicable  after 
the  term  has  expired,  for  the  partnership  is  then  at  will,^ 

And  a  penal  clause  that  if  either  partner  did  certain  things 
the  other  could  dissolve  and  retain  the  business  as  if  the 
former  had  abandoned  it  or  was  expelled  was  held  not  to 
continue  after  the  original  term,  because  the  partner  might 
justly  say  that  he  had  agreed  to  be  a  partner  on  those  terms 
for  the  agreed  time,  with  the  right  to  take  his  interest  out 
thereafter.' 

§  219.  Rights  of  third  persons  in. —  Provisions  in  articles 
giving  annuities  or  other  rights  to  the  decedent's  widow,  in 
case  of  his  death,  or  to  other  persons  not  parties,  can  be  en- 
forced by  them,  being  a  trust  and  not  a  contract.* 

But  strangers,  for  whose  benefit  the  articles  were  not  made,  can- 
not enforce  provisions  only  incidentally  advantageous  to  them. 
Thus,  where  the  firm  agree  to  pay  one  partner,  when  the  profits 
reach  a  certain  point,  $2,000  per  annum,  of  which  $1,000  is  to  be 
paid  to  a  third  person,  until  he  has  received  $5,000,  here,  though 
Buch  person  may,  perhaps,  collect  his  amounts  as  they  fall  due,  he 
cannot  have  an  action  against  the  partners  for  refusing  to  go  on 
with  the  business  or  for  other  misconduct  by  which  the  amount 
out  of  which  he  was  to  be  paid  was  prevented  from  accruing; "  yet 

1  Wilson   V.  Lineberger,  83  N.  Ca.  sion  of  another  partner,  who  objected 

524.  A  firm  of  two  machinists  agreed  to  it,  was  held  to  annul  it,  Blasdell 

to  pay  plaintiff  a  commission  of  two  v.  Souther,  6  Gray,  149. 

and  one-half  per  cent,  on  locomo-  2Featherstonhaugh  v.  Fenwick,  17 

lives  made  and   sold   by  them,  for  "Ves.   298,    307 ;   Neilson  v.   Mossend 

five  years,  in  consideration   of    his  Iron  Co.  L.  R.  11  App.  Cas.  298.    See 

soliciting  for  them,  provided,  that  if  Wilson  v.   Simpson,   89  N.  Y.  619; 

a  new  partner  was  admitted  who  Duffield  v,  Brainerd,  45  Conn.  424. 

objected  to  the  agreement  being  con-  ^  Clark  v.  Leach,  32  Beav.  14 ;  aflf'd 

tinned,  it  should  become  null.    After  in  1  DeG.  J.  &  Sm.  409. 

dissolution  a  verbal  continuance  of  *  Page  v.  Cox,  10  Hare,  163, 

the  agreement  was  made  with  one  5  Greenwood  v.  Sheldon,  31  Minn, 

partner,  and  the  subsequent  admis-  254. 

223 


§  221.  CONDUCT  OF  THE  BUSINESS. 

a  partner  who  has  agreed  to  paj'  an  annuity  out  of  the  profits  is 
liable  in  damages  if  he  wilfully  refuses  to  continue  the  business.' 

§  220.  Firm  name. — The  general  rule  of  law  is  that  when 
a  firm  name  has  been  adopted,  a  partner  cannot  bind  the 
firm  by  any  other  name,  except  by  using  the  individual 
names  of  each  partner.  But  that  if  no  name  has  been 
adopted,  he  can  use  his  own  name  with  ''&  Co."  or  some 
other  representative  expression.  In  order  that  it  may 
appear  beyond  controversy  when  a  partnership  act  is  in- 
tended, it  is  advisable  to  adopt  a  name.  It  is  also  advisable 
to  provide  in  the  articles  that  no  other  than  the  agreed  name 
shall  be  used,  partly  to  remind  the  partners  of  this  rule,  <j,nd 
partly  because  an  express  covenant  to  that  effect  can  be  en- 
forced by  injunction.^ 

§  221.  Time  partnership  begins. —  The  date  of  the  begin- 
ning of  a  partnership  is  a  matter  of  importance,  because 
the  agency  of  each  to  act  for  all,  and  the  right  to  share 
profits,  begin  then;  and  upon  this  matter  may  depend  the 
question  of  whether  preliminary  purchases  or  other  acts 
were  authorized  to  be  made  on  joint  credit  or  were  individ- 
ual transactions.^  If  the  time  is  not  specified  the  date  of 
the  execution  of  the  instrument  will  govern;  audit  has  been 
held  that  parol  evidence  of  a  different  intention  is  not  ad- 
missible, where  the  language  imports  an  absolute  partner- 
ship in  presenti. 

Thus  in  Williams  v.  Jones,  5  B.  &  C.  108,  W.,  an  attorney,  agreed 
to  take  J.'s  son  into  partnership  for  ten  years,  in  consideration,  iu 
writing,  of  £250  cash  and  £100  payable  in  two  years  from  date. 
The  date  for  the  beginning  of  the  partnership  was  stated.  The 
action  was  by  W.  against  J.  for  the  £100,  and  the  plea  Was  non- 
assumimt^  with  proof  that  J.'s  son  was  not  admitted  to  practice 
until  six  months  after  the  date  of  the  contract,  and  hence  the  part- 
nership was  illegal,  as  being  between  an  attorney  and  a  person  not 
admitted.     The  plaintiff  offered  evidence  that  the  contract  was  not 

iMnlntyre  v.  Belcher,  14  C.  B.  N.  SThis  is  fully  considered  under  lu- 
S.  G5i.  choate  Partnerships,  §  80. 

3Seeg§199,  660. 

234 


ARTICLES  OF  PARTNERSHIP.  g  222. 

put  in  force  until  J.'s  son  was  admitted;  but  the  exclusion  of  this 
evidence  was  held  correct,  because  it  varied  the  writing,  which  was 
for  a  present  partnership,  and  sought  to  make  it  conditional  upon 
J.'s  son's  admission  to  practice,  and  the  plaintiff  was  nonsuited.' 

Where  the  articles  provide  that  the  partnership  shall  be  deemed 
to  have  commenced  at  a  preceding  date,  this  is  a  bargain  between 
the  parties,  but  not  a  pledging  of  credit  to  third  persons,  or  at  most 
is  a  ratification  of  acts  done  for  the  benefit  of  as  well  as  in  the 
name  of  the  firm,  and  does  not  bind  an  incoming  partner  to  make 
good  antecedent  abuses  of  powers  by  a  partner,  of  which  the  firm 
got  no  benefit,  and  by  which  the  other  partners  inter  se  are  not 
bound.' 

So  an  agreement  that  the  partnership  shall  be  in  existence  from 
a  future  day,  where  the  partners  begin  to  act  as  such  immedi- 
ately, is,  like  all  other  secret  stipulations,  inoperative  as  to  cred- 
itors.' 

§  222.  Duration. —  The  importance  of  fixing  the  duration 
of  the  partnership  results  from  the  fact  that  otherwise  it  is 
a  partnership  at  will,  dissolvable  at  the  pleasure  of  any 
member,  without  liability  to  his  copartners,  however  ruin- 
ous the  consequences  to  them.  But  the  agreement  for  a 
fixed  term  need  not  be  express;  it  may  appear  by  implica- 
tion. 

Even  if  a  definite  term  is  agreed  on,  the  death  or  bank- 
ruptcy of  a  partner  before  its  completion  will  terminate  the 
partnership,  unless  there  is  a  specific  and  express  provision' 
covering  these  contingencies.  In  deciding  upon  the  advisa- 
bility of  such  provision,  it  must  be  remembered  that,  in' 
many  kinds  of  business,  an  immediate  dissolution  and 
winding  up  may  be  disastrous  both  to  the  living  partners 

iThe  day  of  delivery  and  not  the  May  21,  B.  used  the  firm  name  to 

written  date  is  the  day  of  execution,  raise  money,  which  he  intended  to 

Holmes  v.  Porter,  39  Me.  157,  of  an  apply  and  did  apply  for  his  private 

agreement  of  dissolution.  purposes,    although  the  lender  did 

2Vere  v.   Ashby,   10  B.  &  C.   288.  not  know  this.     The  lender  cannot 

In  this  case,  on  June  24,  C.  agreed  to  hold  C.  upon  the  paper, 
become  a  member  o?  the  firm  of  A.        'See  Battley  v,  Lewia,  1  M.  &  Q, 

&  B.,  the  partnership  to  be  consid-  155. 
ered  as  beginning  from  M;)y  18.     On 

Vol.  1—15  235 


§  224.  CONDUCT  OF  THE  BUSINESS. 

and  to  tlie  estate  of  the  deceased,  and  that  the  representa- 
tives of  the  estate  cannot  safely  remedy  this  if  they  would, 
for  want  of  authority  to  hazard  its  assets  by  consenting  to 
or  permitting  a  continuance.  Moreover  the  surviving  part- 
ners cannot  be  compelled  to  admit  the  executors  to  a  share 
of  the  management  of  the  business,  even  though  they  have 
agreed  upon  its  being  continued  after  death,  unless  they  have 
also  agreed  that  such  representative  shall  have  such  right. ^ 

§  223.  Business  to  be  stated.—  The  business  or  objects  of 
the  partnership  ought  of  course  to  be  described  in  the  arti- 
cles, because  its  nature  and  requirements  are  the  measure  of 
the  power  of  each  partner  to  bind  the  firm.- 

§  224.  Fidelity  to  the  firm;  compensation;  competing. — 

It  is  common  to  insert  a  clause  requiring  the  observation  of 
good  faith  to  each  other  and  fidelity  to  the  common  inter- 
ests. This  clause  is  of  no  value  except  as  a  reminder  to  the 
partners,  for,  as  we  have  seen,  the  highest  degree  of  good 
faith  will  be  exacted  without  any  stipulation  whatever. 

As  fidelity  to  the  firm  requires  a  partner  to  give  his  time 
to  the  business,  except  when  incapacitated,  and  to  perform 
all  necessary  services  without  compensation,^  the  articles 
should  specify  to  what  extent  any  of  the  partners  are  not 
expected  to  devote  themselves  to  the  transaction  of  business, 
and  what  extra  compensation  as  salary  or  commissions  he 
may  have  in  addition  to  his  share  of  the  profits;  and  so  if 
he  is  to  have  any  personal  advantage  in  the  way  of  commis- 
sions or  profits  on  sales  or  purchases  to  or  from  the  firm  by, 
to  or  through  him. 

A  reservation  of  a  right  in  one  partner  of  a  professional  partner- 
ship to  carry  on  any  other  business,  and  to  absent  himself  as  he 
should  see  fit,  was  held  to  give  him  the  right  to  cease  business  al- 
together and  move  away,  and  this  was  not  abandoning  the  partner- 
ship.* Even  a  positive  agreement  to  give  time  to  the  business  is 
not  broken  by  absence  from  sickness." 

*  55  158.  4  McFerran  v.  Filbert,  103  Pa.  St.  73. 

*§816.  8  Boast  V.  Firth,  L.  R.  4  C.  P.  1; 

3  See  §  770.  Robinson  v.  Davison,  6  Exch.  269. 

226 


ARTICLES  OF  PARTNERSHIP.  g  225. 

And  for  the  same  reason,  if  a  partner  is  to  be  permitted  to 
hacve  dealings  on  his  own  account  in  any  kind  of  business 
which  is  within  the  scope  of  the  partnership  objects,  or  to 
be  a  member  of  a  competing  firm,  this  right  must  be  re- 
served, for  a  partner  will  not  be  allowed  to  compete  with 
the  partnership.^  But  such  privileges,  in  case  of  doubt,  will 
doubtless  be  construed  in  favor  of  the  firm. 

Thus,  in  Starr  v.  Case,  59  Iowa,  491,  the  articles  required  from  each 
partner  his  entire  time  except  time  for  fulfilling  the  duties  of  any 
oflSce  or  agency  held  individually,  and  neither  partner  should  ac- 
cept or  continue  in  office  without  the  consent  of  all;  this  exception 
was  construed  to  refer  to  future  as  well  as  existing  offices,  and  the 
word  "  held  "  was  not  confined  to  existing  positions. 

If  a  partner  holds  an  office,  the  emoluments  of  it  belong  presum- 
ably to  him  and  not  to  the  firm.^  Hence  it  is  desirable,  that  doubt 
may  be  avoided,  to  specify  whether  the  salary  is  to  belong  to  the 
firm  or  not., 

§  225.  Books  and  accounts. —  The  duty  of  each  partner  to 
keep  accurate  accounts  of  his  own  transactions  always  ready 
for  inspection  has  been  elsewhere  noticed.'  And  the  great 
importance  of  keeping  books  will  be  hereafter  treated.  The 
duty  of  keeping  the  books  at  the  place  of  business,  accessible 
to  each  party,  is  implied  as  matter  of  law.  Nevertheless,  it 
is  advisable  to  provide  against  their  removal,  since  it  is  cer- 
tain that  a  breach  of  an  express  covenant  to  that  effect  will 
be  prevented  by  injunction.* 

In  order  to  show  the  condition  of  the  firm  and  the  account 
of  each  partner  with  the  firm,  it  is  usual  to  agree  that  peri- 
odical settlements  of  the  accounts  be  made,  showing  the  as- 
sets and  liabilities  of  the  firm  and  the  balances  in  favor  of 
or  against  each  partner,  and  an  ascertainment  and  division 
of  profits.  Such  accountings,  after  the  acquiescence  of  all 
the  partners,  are  presumptively  correct,  and  can  only  be  at- 
tacked on  affirmative  proof  of  error.  But  it  may  conduce 
to  the  welfare  of  the  partners  to  close  this  source  of  objec- 
tion, unless  availed  of  within  a  reasonable  time,  and  for  that 

1  §  306.  3  §  313. 

2  See  §269.  <§314. 

227 


§  227.  CONDUCT  OF  THE  BUSINESS. 

purpose  a  clause  is  often  inserted  that  the  periodical  state- 
ments shall  be  conclusive  upon  the  partners,  unless  errors 
are  found  and  objected  to  within  a  given  time.  No  accounts 
are  binding  upon  a  partner  if  his  acquiescence,  or  signature 
when  signing  is  required,  was  obtained  by  fraud,  deception 
or  concealment.^ 

§  226.  Capital. —  It  is  of  importance  to  specify  what  is  to 
be  regarded  as  capital,  and  if  it  be  contributed  in  goods  their 
value  ought  to  be  agreed  upon,  so  that  upon  dissolution  the 
amount  due  each  as  capital  shall  not  be  in  dispute,  and  that 
in  case  profits  are  to  be  divided  in  proportion  to  capital  the 
ratio  may  be  obvious.  If  the  capital  is  to  bear  interest  this 
must  be  stated,  for  otherwise  it  will  not.^  If  the  use  alone 
of  property  as  distinguished  from  the  property  is  contrib- 
uted, this  should  be  made  clear.  And  where  the  use  con- 
sists of  a  leasehold  for  a  term  longer  than  the  partnership 
term,  or  consists  of  a  good  will  or  of  a  patent  right  or  trade 
secret,  the  benefit  of  which,  after  the  expiration  of  the  part- 
nership, is  to  belong  exclusively  to  the  partner  who  contrib- 
uted it,  it  is  particularly  important  to  show  this.  If  one 
partner  is  to  have  a  right  to  increase  his  capital,  this  must  be 
stated;  and  if  accumulated  profits  are  to  be  left  in  as  capital, 
this  must  be  stated,  otherwise  they  are  mere  deposits.'  If 
payments  of  contributions  to  capital  or  other  acts  are  con- 
ditions precedent  to  the  existence  of  the  partnership,  this 
should  be  stated.'* 

§  227.  real  estate.— It  should  appear  whether  real 

estate  in  the  name  of  one  partner  becomes  joint  property  or 

1  §§  959,  961.  to  be  reimbursed  to  him  out  of  the 

2  §  781.  crop.     Nichol  v.    Stewart,    36   Ark. 

3  §  255.  612.    If  a  partner  contributes  the  use 
*  An  agreement  in  the  articles  of  a  of  a  mill,  macJiinery,  etc.,  the  firm 

planting  partnership  that  one  part-  is  not  bound  to  leave  it  in  good  re- 

uer  would   "advance"  to  the  firm  pair  at  dissolution.     If  the  articles 

mules,     implements    and    supplies,  provide  that  additions  are  to  be  paid 

was  construed  to  mean  free  of  cost,  for  by  him  and  repairs  by  the  firm, 

but  the  mules  and    implements  re-  as  to  what  are  additions  and  repairs, 

mained  his   property,  and  the   sup-  see  Dunnell  v.  Henderson,  23  N.  J. 

plies    consumed     in    the    use    were  Eq.  174. 

228 


ARTICLES  OF  PARTNERSHIP.  §  22S. 

whether  its  use  only  is  contributed;  and  if  the  former, 
whether  the  partners  hold  as  tenants  in  common  or  whether 
it  is  assets;  the  general  American  rule  being  that  the 
surplus  of  partnership  real  estate,  after  all  debts  and  co- 
partners' claims  are  satisfied,  is  no  longer  personalty  but 
descends  as  real  estate.  If  an  out  and  out  conversion  into 
personalty  is  intended,  so  that  the  surplus  shall  go  to  the 
personal  representatives  and  not  to  widow  and  heirs,  this 
should  be  stated.^ 

§  228.  Division  of  profits. —  The  articles  ought  to  state 
the  proportion  in  which  profit  and  loss  should  be  divided; 
the  amount  of  earnings  to  be  held  back,  if  any;  the  periods 
of  computation  and  division,  and,  as  far  as  possible,  the 
method  of  ascertainment.  We  have  elsewhere  seen  that 
there  is  a  presumed  equality  in  shares  if  the  articles  are 
silent;  but  this  presumption  is  not  irresistible  and  may  be 
overthrown  by  construction;  hence  is  a  further  necessity  for 
explicit  statement. 

If  the  articles  are  silent  as  to  the  period  of  division,  it 
does  not  follow  that  the  profits  are,  by  agreement,  to  accu- 
mulate until  the  end  of  the  term,  but  may  be  divided  from 
time  to  time  as  the  partners  may  decide.^'  But  this  is  a 
matter  within  the  control  of  the  majority,  and,  to  prevent 
dispute,  especially  if  the  number  of  partners  is  even,  should 
be  declared  in  advance  by  stipulation. 

Where  partners  in  a  mill  tVere  in  the  habit  of  dividing  the  grain 
received  as  toll  as  it  was  received,  this  usage  is  evidence  of  an 
agreement  to  that  effect,  and  one  partner  cannot  require  the  other 
to  let  the  grain  accumulate  in  order  to  pay  a  debt  of  the  firm,  or 
prevent  the  other  taking  possession  of  his  share.'  And  where 
some  of  the  partners  claimed  that  a  settlement  was  to  be  had  but 
once  a  year,  it  was  held  that  another  provision  by  which  such  par- 
ties could  pay  out  plaintiff's  share  at  a  certain  amount  within  six 
months  showed  that  a  more  frequent  settlement  was  intended.* 

1  §  297.  case  that  the  question  was  of  the 

2  Kennedy  v.  Kennedy,  3  Dana,  239.  riglit  to  take  possession  of  an  article 

3  In  Canithers  v.  Jarrell,  20  Ga.  rather  than  to  insist  upon  a  division. 
843.     But  it  will  be  observed  of  this  *  Wood  v.  Beath,  23  Wis.  254,  2G0. 

229 


§  229.  CONDUCT  OF  THE  BUSINESS. 

In  Parnell  v.  Robinsou,  58  Ga.  26,  a  firm  for  tlie  storage  and 
sale  of  cotton  had,  for  ten  or  twelve  years,  a  quantity  of  cotton  for 
which  no  owner  had  appeared.  After  the  death  of  one  partner  the 
surviving  partner  sold  it.  The  court  required  him  to  account  for 
a  share  of  the  proceeds  with  the  administrator,  because  the  pos- 
session had  been  joint,  and  the  estate  would  be  liable  to  the  true 
owner;  but,  to  protect  the  survivor,  the  court  ordered  the  adujinis- 
trator  to  hold  the  fund  for  a  reasonable  time,  viz.,  twelve  months, 
and  advertise  for  the  owners. 

§  229. meaning  of  profits. —  Profits,  pure  and  simple, 

is  the  advance  obtained  in  sales  be3^ond  the  cost  of  purchase, 
orthe  excess  of  the  value  of  returns  over  the  value  of  ad- 
vances.' 

The  meaning  of  profits  as  distinguished  from  capital  is  illus- 
trated in  Fletcher  v.  Hawkins,  2  R.  I.  330.  There  H.,  a  member 
of  a  mining  association,  whose  shares  were  $300,  procured  his  $300 
from  F.,  to  whom  he  agreed  to  pay  one-fourth  of  the  profits.  H. 
sent  out  a  man  in  his  place  on  the  expedition,  the  substitute  agree- 
ing to  pay  over  to  H.  half  his  jDrofits.  The  association  was  to  di- 
vide profits  over  and  above  capital  once  a  year,  but  dissolved  before 
beginning,  each  man  agreeing  to  work  by  himself  for  the  member 
who  sent  him.  H.'s  substitute  sent  back  $300  worth  of  gold,  which 
H.  receipted  for  as  half  the  proceeds  of  their  engagement.  It  was 
held  that  H.  was  not  liable  to  pay  F.  part  of  this,  because  it  is  not 
profits,  not  being  in  excess  of  capital.  The  substitute  is  bound  to 
account  for  H.'s  capital  as  well  as  for  profits,  and  this  is  an  ac- 
counting, and  H.'s  receipt  does  not  estop  him.  The  word  profits 
in  the  ordinary  sense,  legal  and  mercantile,  being  the  excess  over 
capital,  and  was  used  in  that  sense  in  the  articles,  and  though  a  hard 
bargain  for  the  plaintiff,  the  burden  is  on  him  to  show  that  his 
contract  required  a  different  meaning  to  be  given  to  the  word. 

So  in  Leach  v.  Leach,  18  Pick.  68,  the  articles  required  T.  to 
furnish  $20,000  as  capital,  and  J.  to  manage  the  business  and  keep 
the  stock  at  its  original  value  out  of  the  proceeds  of  sales,  the 
profits  to  be  equally  divided,  and  on  dissolution  T.  was  to  re- 
ceive back  $20,000  in  the  stock  remaining,  losses  by  bad  debts, 
decay  of  goods  and  inevitable  accidents  excepted.  The  proper 
construction  is  not  that  bad  debts  are  to  be  deducted  out  of  the 

•See  Doane  v.  Adams,  15  La.  Ann.  S'jO;  Shea  v.  Donahue,  15  Lea,  160. 

230 


ARTICLES  OF  PARTNERSHIP.  §  230. 

capital  but  out  of  the  profits;  there  would  be  no  profits  unless 
there  is  a  surplus  after  keeping  the  capital  unimpaired,  otherwise 
the  profits  would  not  be  equally  divided;  and  the  phrase  "  losses  by 
bad  debts,  etc.,  excepted  "  means  that  if  there  are  no  profits  and 
the  capital  is  reduced,  then  this  provision  is  to  be  applied. 

Expenses  in  permanent  improvements  are  really  additions 
to  capital,  or,  if  it  be  not  intended  to  increase  the  capital, 
should  be  paid  for  out  of  the  capital  and  not  out  of  the 
profits. 

Thus,  in  Braun's  Appeal,  105  Pa.  St.  414,  one  partner  was  to  re- 
ceive a  percentage  of  the  "gross  income."  The  partners,  in  order 
to  put  their  establishment,  a  mill,  in  running  order,  made  im- 
provements beyond  ordinary  repairs,  which  increased  the  capacity 
of  the  mill  and  added  to  its  permanent  value.  It  was  held  that 
these  expenses  were  not  to  be  deducted  in  reckoning  profits,  but 
must  be  regarded  as  capital. 

So  in  Squires  v.  Anderson,  54  Mo.  193,  where  one  partner  fur- 
nished land  to  be  cultivated,  and  the  necessary  money,  and  the 
other  the  labor,  the  land  remaining  the  property  of  the  former,  he 
is  to  be  charged  with  all  permanent  improvements  paid  for  with 
partnership  funds,  but  not  with  the  increased  value  of  vines  due  to 
their  growth  during  the  term  which  were  upon  the  firm  at  the 
formation  of  the  partnership.  This  incidental  growth  was  not 
intended  to  be  considered.' 

In  a  partnership  in  a  land  speculation,  where  one  partner  fur- 
nishes all  the  funds  and  the  other  does  the  work,  and  profits,  de- 
ducting expenditures,  are  to  be  divided,  the  profits  are  the  value  ot 
the  land,  whether  ascertained  by  resale  or  by  valuation,  deducting 
cost  and  inciden tal  expenses.* 

§  230.  - —  net  profits. —  The  term  net  profits  means,  in 
effect,  the  same  thing  as  profits,  and  the  term  gross  profits 

I  We  shall  elsewhere  see  that  cap-  in  consideration  of  plaintiff's  going 
ital  or  unsettled  balances  do  not  security  for  him  for  the  original  pur- 
bear  interest,  and  hence  profits  are  chase  of  the  business.  Here  it  was 
not  to  be  reduced  on  that  account,  held  he  could  credit  himself  with  his 
§§  781,  786.  In  Dunlap  v.  Odena,  1  own  labor  and  that  of  his  two  hands 
Rich.  (S.  Ca.)  Eq.  273,  A.,  owning  a  before  reckoning  profits, 
business  in  which  he  worked  and  2  Proudfoot  v.  Bush,  7  Grant's  Ch. 
employed  two  hands,  agreed  to  pay  (Up.  Can.)  518. 
plaintiff  one-third  of  the  net  profits 

231 


§  230.  CONDUCT  OF  THE  BUSINESS. 

is  a  solecism,  although  it  has  been  used  by  political  econo- 
mists as  representing  the  total  difference  between  the  values 
of  advances  and  returns,  in  contradistinction  to  net  profits, 
as  meaning  only  that  part  of  such  amount  as  can  be  attrib- 
uted solely  to  capital.  Gross  returns  are  returns  without 
deduction  for  losses  or  capital. 

The  term  net  profits  is  illustrated  in  Welsh  v.  Canfield,  60  Md. 
469.  The  articles  of  partnership  provided  that  each  partner  should 
be  entitled  to  a  stated  proportion  of  profits,  W.'s  share  being  one- 
eighth,  and  should  bear  losses  in  the  same  proportion.  Another 
article  provided  th;it  if  the  net  profits  in  any  one  year  should  be  so 
small  that  W.'s  portion  should  not  amount  to  $2,5t)0,  his  account 
should  be  credited  with  enough  to  make  up  that  sum.  Heavy 
losses  having  occurred,  W.  claimed  that  he  was  chargeable  with 
them  only  to  the  extent  of  diminishing  his  yearly  profits  down  to 
$2,500.  But  the  other  partners  claimed  that  their  obligation  to 
make  up  to  W.  a  deficiency  in  profits  was  limited  to  $2,500,  and  if 
after  this  there  still  remained  a  loss,  he  was  responsible  for  one- 
eighth  of  it.  It  was  held  that  the  latter  of  the  above  articles 
applied  in  case  the  net  profits  did  not  divide  to  W.  $2,500  to  indem- 
nify him  for  the  loss  he  otherwise  would  bear  under  the  former  ar- 
ticle, and  that  he  was  entitled  to  any  sum  necessary  to  give  him 
a  net  profit  of  $2,500.  Because  to  credit  him  with  a  sum  as  net 
profits,  and  then  charge  him  with  a  loss  that  not  only  eats  it  up 
but  inflicts  an  absolute  loss  beyond,  is  not  giving  him  a  net  gain, 
but  only  giving  the  benefit  of  a  certain  sum  which  it  would  be  a 
misnomer  to  call  net.  That  he  is  to  be  "credited"  instead  of  paid 
makes  no  difference.  The  term  is  appropriate  in  relation  to  a  cur- 
rent business  where  a  credit  may  be  absorbed  by  a  debt,' 

1  Salaries  of  partners  are  part  of  share  shall  be  $10,000,  and  not  that 
the  expenses,  to  be  deducted  before  the  whole  profits  shall  be  $10,000, 
an  employee's  share  of  net  profits  is  which  would  give  him  but  $5,000. 
to  be  computed.  Fuller  v.  Miller,  105  Grants.  Bryant,  101  Mass.  567;  Du- 
Mass.  103.  So  are  losses  by  fire,  mont  v.  Ruepprecht,  38  Ala,  175. 
Gill  V.  Geyer,  15  Oh.  St,  399;  Me-  But  if  a  partner  is  to  get  half  the 
serve  v.  Andrews,  106  Mass.  419;  and  crop  after  all  supplies  which  he  had 
see  next  section.  So  if  one  partner  furnished  were  paid,  the  payment  . 
guaranties  to  the  other  $10,000  profits  is  not  to  be  out  of  the  other's  share, 
the  first  year,  notwithstanding  losses  but  before  division.  Nichol  v.  Stew- 
to  any  extent,  and  no  profits  were  art,  36  Ark.  613. 
made,  this  means  that  the  former's 

232 


ARTICLES  OF  PARINERSHIP.  §  232. 

§  231.  losses. —  There  is  another  very  important  ob- 
servation to  be  made  in  this  connection.  Where  one  partner 
furnishes  all  the  capital,  and  the  other  his  skill  and  labor 
only,  as  the  capital  belongs  to  the  firm,  a  loss  of  it  falls  upon 
all  the  partners  and  not  upon  the  one  furnishing  it  alone.  If 
the  partner  who  furnishes  labor  only  is  to  risk  the  loss 
of  that  alone,  and  is  not  in  addition  to  become  indebted  for 
impairment  of  capital,  it  must  be  so  expressed  in  the  arti- 
cles. 

If,  however,  the  partners  are  such  in  profits  alone,  and  the 
stock,  plant  or  other  property  out  of  which  earnings  are 
made  remains  the  property  of  one  partner  alone,  a  loss  of 
it  is  not  a  loss  by  the  firm.'  Even  in  the  latter  case,  if  the 
course  of  dealing  has  shown  that  the  net  profits  alone  are  to 
be  divided,  a  loss  of  stock  by  fire  must  be  deducted  before 
estimating  profits,  whether  the  other  associate  be  a  partner 
or  an  employee.^  But  if  one  partner  furnishes  the  capital, 
and  not  the  mere  use  of  property,  loss  by  fire  is  like  a  loss 
by  bad  debts,  to  be  borne  by  all;  *  and  insurance  of  it  is  part 
of  the  expenses  of  the  business.^ 

§  232.  Restrictions  on  ordinary  powers. —  If  the  ordinary 
powers  of  a  partner  are  to  be  restricted,  as  the  right  to 
draw  checks  or  bills  and  make  notes  or  accept  drafts,  this 
must  be  specified  in  the  articles;  and  even  then  it  does  not 
bind  third  persons  who  have  no  notice  of  the  restriction.^ 
And  the  same  is  to  be  said  of  the  not  uncommon  agreement 

iWhitcombv.  Converse,  119  Mass.        5  Where  one  partner  was  to   fur- 

38,  43;  20  Am.  Rep.  311,  nish  all  the  capital,  payable  in  sucL 

2  Gill  V.  Geyer,  15  Oh.  St.  399.  And  sums  as  nray  be  drawn  for  by  the 

see  Meserve  V.   Andrews,  106  Mass.  operating  agent,  to  be  used  in  buying 

419.  logs,  but  neither  of  the  partners  nor 

5  Carlisle  v.  Tenbrook,  57  Ind.  529 ;  the  agent  were  to  sign  the  firm  name 

Taft  u.  Schwamb,  80  111.  289;  Savery  to    any  note,   this  clause    does   not 

V.  Thurston,  4  111.   App,   55 ;   Gill  v.  limit  the  first,  and  orders  drawn  oa 

Geyer,   15  Oh.   St.   399;   Meserve  v.  the  partners  to  pay  for  logs,  signed 

Andrews,  106  Mass.  419.  P.  &  B.,  by  W.,  agent,  are  rightly 

< Livingston     v.     Blanchard,     130  executed.     Gasliu     v.     Piuuey,     23 

Mass.  341.     This  subject   is  treated  Minn.  26. 
more  fully   under   Winding-up,    §§ 
813-819. 

233 


§  233.  CONDUCT  OF  THE  BUSINESS. 

that  no  partner  shall  become  security  for  third  persons.  So 
the  right  to  receive  payment  of  debts  cannot  be  limited  by 
mere  notice  to  the  debtor  not  to  pay  a  particular  partner, 
unless  it  be  so  agreed  between  the  partners,  even  if  he  be 
insolvent.^  Hence,  in  order  to  restrict  to  one  partner  the 
right  to  collect  debts  or  to  wind  up,  a  special  agreement  is 
necessary,  and  such  agreement  is  enforcible  by  receiver  and 
injunction.^ 

And  it  may  bo  wise,  in  order  to  avoid  future  dispute,  to 
settle  upon  the  powers  of  the  majority,  or,  if  the  number  of 
partners  is  even,  to  agree  as  to  the  exercise  of  the  power  of 
engaging  and  discharging  employees. 

§  233.  Arbitration  clause. —  An  agreement  to  submit  dis- 
putes to  arbitration  is  a  common  provision  in  articles  of 
partnership;  nevertheless  the  ordinary  rule,  that  such  an 
agreement  will  not  be  specifically  enforced  when  its  effect 
is  to  oust  the  courts  of  jurisdiction,  applies  to  partnerships.' 
Nor  will  an  action  lie  for  damages  for  breach  of  an  agree- 
ment to  arbitrate,  for  non  constat  that  the  plaintiff  would 
have  succeeded  in  the  arbitration.* 

Hence,  to  a  bill  in  equity  for  discovery  or  an  accounting,  the 
pendency  of  arbitration  proceedings  is  no  defense,  for  the  award 
may  never  be  made,  as  the  court  cannot  compel  the  arbitrators  to 
act  or  to  decide.*  True,  the  court  and  the  arbitrators  may  arrive  at 
different  conclusions,  but  so  may  two  courts.® 

Nevertheless  where  there  is  an  agreement  to  submit  dis- 
putes to  arbitration,  the  court  may  refuse  the  ruinous  course 

1  See  §326.  <  Tattersall  v.  Groote,  2  B.  &  P. 

2  See  Davis  v.  Amer,  3  Drew,  64.  131;  but  in  Liviogston  v.  Ralli,  5  E. 

3  Street  v.  Righj,  6  Ves.  615,  618;  &  B.  132,  the  action  was  lield  to  lie. 
Tattersall  v.  Groote,  2  B.  &  P.  131,  5  Cooke  v.  Cooko,  L.  R.  4  Eq.  77, 
135;  Leeu.  Page,  7  Jur.  N.  S.  768;  30  88;  Street  v.  Rigby,  6  Ves.  615,  618; 
L.  J.  N.  S.  Ch.  857;  Pearl  v.  Harris,  Meaher  v.  Cox,  37  Ala.  201 ;  s.  c.  Ala. 
121  Mass.  390;  Page  v.  Vankirk,  6  Sel.  Cas.  156;  Page  v.  Vaiikirk,  6 
Phila.  264;  1  Brewst.  282.  The  case  Pliila.  264;  s.  C.  1  Brewst.  2»2.  See 
of  Hulfhide  v.  Fenning,  2  Bro.  C.  C.  De  Pusey  v.  Dupont,  1  Del.  Ch.  82. 
336,  has  been  overruled  upon  this  But  see  Russell  v.  Russell,  14  Ch.  D. 
point  in  numerous  cases  not  involv-  471. 

ing  partnerships.  6  Cooke  v.  Cooke,  L.  R.  4  Eq.  77,  88. 

234 


ARTICLES  OF  PARTNERSHIP.  §  234. 

of  appointing  a  receiver  until  the  parties  have  tried  to  set- 
tle their  disputes  in  the  way  agreed;  ^  but  its  jurisdiction  to 
grant  injunction  and  receiver  is  not  ousted  by  such  agree- 
ment and  will  be  exercised  in  a  proper  case.^ 

And  if  a  contract  of  dissolution  provides,  among  other 
things,  for  arbitration,  and  its  other  provisions  have  been 
carried  out  and  the  arbitration  is  in  progress,  if  one  partner 
can  revoke  the  submission  at  all  he  cannot  do  so  without 
rescinding  the  entire  contract.' 

§  234.  power  of  the  arbitrators. —  If  partnership  dis- 
putes are  submitted  to  arbitration  for  general  settlemeut  and 
accounting,  the  arbitrators  do  not  exceed  their  jurisdiction  by 
awarding  a  dissolution.''  On  the  other  hand,  although  the  ques- 
tion of  dissolution  may  be  specificallj'  submitted,  among  other 
things,  they  need  not  award  upon  it,  unless  the  submission  requires 
a  finding  upon  all  points.* 

The  arbitrators  may  award  that  one  shall  have  certain  of  the 
property,  or  may  divide  the  property  between  them,*  and  order 

» Waters  u.  Taylor,  15  Ves.  10.  <  Green  v.  Waring,   1   W.  Bl.  475; 

2  Page  V.  Vankirk,  6  Phila.  264 ;  1  Hutchinson    v.     Whitfield,     Hayes 

Brewst.  283.  (Irish),     78.      The     dissolution    was 

8  Haley  v.  Bellamy,  137  Mass.  357.  awarded  as  of  a  day  then  past  in 

In  England   the  statute,  17  and   18  Routh  v.  Peach,  3  Anstr.  637.    And  if 

Vic.  ch.  125,  §  11,  now  controls,  and  the  articles  provide  that  dissolution 

provides  that  if  parties  have  agreed  must  be  by  deed,    an  award  under 

in  writing  to  submit  disputes  to  arbi-  seal  satisfies  them.     Hutchinson   v. 

tration,  and  shall  nevertheless  com-  Whitfield,  supra. 

mence  suit,  the  court  may,  if  there  sSimmonds  v.    Swaine,    1  Taunt, 

is  no  good  reason  to  the  contrary,  549.     See  Page  v.  Vankirk,  6  Phila. 

stay  the  suit  on  the  defendant's  ap-  264 ;  s.  C.  1  Brewst.  282. 

plication  in  order  that    arbitration  6  Wood  v.    Wilson     2    Cr.    M.   & 

may  take  place.     This  provision  was  r,    241 ;  Leavitt  v.  Comer,   5  Cush. 

acted  upon  in  Plews  v.  Baker,  L.  R.  jgg.  Lamphire  v.  Cowan,  39  Vt.  420. 

16  Eq.  564;  Randegger  v.  Holmes,  L.  R.  &  b.,  partners,  had  two  establish- 

R.  1  C.  P.  679;  Hirsch  v.  Im  Thurn,  nients,  one  for  tailoring  and  one  for 

4  C.  B.  N.  S.   509;  Gillett  v.  Thorn-  merchandise;   they    dissolved,   and, 

ton,  L.  R.  19  Eq.  599 ;  Witt  v.  Cor-  submitting  their  matters  to  arbitra- 

coran,  cited  in  notes  to  Wellesford  v.  tion,     the    tailoring    establishment 

Watson,  L.  R.  8  Ch.  App.  on  p.  476,  was   awarded  to  R.,   he  to  pay  its 

and  further  explained   in   Plews  v.  debts,  and  the  merchandising  estab- 

Baker,  L.  R.  16  Eq.  564,  571;  Russell  iishnient  to  B.,  he  to  pay  its  debta 

V.  Russell,  L.  R.  14  Ch.  D.  471.  and  R.  $4G8.     A  creditor  of  the  mei> 

235 


S  2;m. 


CONDUCT  OF  THE  BUiJlNE-S. 


■conveyances;'  or  may  award  that  the  debts,  when  collected,  shall 
be  divided  between  the  parties,  because  the  arbitrators  cannot  con- 
trol the  debtors  of  the  firm  to  prevent  their  paying  all  to  one  part- 
ner if  they  choose;''  or  that  one  shall  have  all  the  debts  due,  with  a 
right  to  sue  in  the  name  of  the  other  if  necessary,*  or  that  one 
shall  pay  or  secure  to  the  others  a  specified  amount,  and  assume 
the  debt;*  or  that  one  shall  take  all  the  property,  as  trustee,  to 
wind  up;  in  which  case  the  trustee  can  maintain  trover  against  a 
third  person  to  whom  another  partner,  after  such  dissolution  and 
with  notice  of  its  terms,  has  transferred  property  to  secure  a  debt 
of  the  firm/ 

In  these  cases  the  arbitrators  do  right  in  requiring  such  partner 
to  give  a  bond  of  indemnity  to  protect  the  other  partner,  regardless 
of  whether  he  has  acted  well  or  badly;  ^  and  if  the  arbitrators  have 
not  required  it,  the  court  will  impose  and  enforce  it  by  injunc- 
tion.'' 

The  arbitrator  has  no  right  to  collect  debts,^  nor  to  order  a  part- 
ner to  pay  him  money  to  be  used  in  paying  debts,®  because  the 
court  has  no  control  over  the  arbitrator;  or  may  forbid  one  of  the 
partners  from  carrying  on  a  competing  business  within  specified 
bounds.'"    An  award  directing  accounts  to  be  taken  without  order- 

chaudising  establishment  got  judg-  ^  Cook  v.  Jenkins,  35  Ga.  113;  Bur- 

ment  and  levied  on  individual  estate  ton  w.  Wigley,  1  Bing.  N.  C.  665. 

of  R.  and  B.  respectively.     R.  asked  7  Cook  v.  Jenkins,  su^jra.     If  the 

an    injunction    against    selling    his  partners  have  assigned  their  property 

lands  before  B.'s  property  was  ex-  to  a  trustee  with  certain  instructions 

hausted,  claiming  to   be  in  effect  a  as  to  its  disposition,  and  afterwards 

surety   for  B. ;  but   it   was  decreed  submit  to    arbitration,    recognizing 

that  he  must  pay  the  $468  on  the  these    instructions,    the  arbitrators 

judgment  within   thirty  days,    else  have  no  right  to  deviate  from  them 

tiie  injunction  would  be  dissolved;  and  make  other  disposition   of  the 

for  eacii  part  of  the  award  depends  property.     McCormick  v.   Gray,    13 

on  the  other  parts.     Runyon  v.  Bro-  How.  26. 

kaw,  5  N.  J.  Eq.  340.  8  Lingood  v.  Eade,  2  Atk.  501,  505. 

1  Wood  V.  Wilson,  2  Cr.  M.  &  R.  241.  Nevertheless  he  did  so  by  appointing 

2  Lingood  u  Eade,  2  Atk.  501,  505.  a  person  for  tlie  purpose,  tlie  coui-t 


3  Burton  v.  Wigley,  1  Bing.  N.  C. 
6i)5. 

*Simmonds  v.  Swaine,  1  Taunt. 
54'd ;  Byers  v.  Van  Deusen,  5  Wend. 
268. 


saying  nothing  as  to  the  authority  in 
Routh  V.  Peach,  2  Anstr.  519. 

^Ee  IMackey,  2  A.  &  E.  356. 

10  Burton  v.  Wigley,  1  Bing.  N.  C. 
665 :  Morley  v.  Newman,  5  D.  &  R. 


6  Hutchinson  v.  Wliitfield,  Hayes    317;  Green  v.  Waring,  1  W.  Bl.  475, 
(Irisii),  78;  Cook  v.  Jenkins,  35  Ga.  1 13. 

236 


ARTICLES  OF  PARTNERSHIP,  §  235. 

ing  payment  of  any  balance  is  not  invalid,  for  the  court  may  enforce 
the  payment  of  balances.' 

A  submission  may  be  of  both  partnership  and  individual  mat- 
tei's,  and  if  the  award  is  of  partnership  matters  only,  it  must  be 
shown  that  individual  controversies  in  fact  existed  in  order  to  at- 
tack it."  The  submission  of  partnership  matters  to  ascertain  the 
share  of  a  deceased  partner  does  not  include  real  estate  not  alleged 
to  be  partnership  property.^  An  award  between  partners,  relating 
to  disposition  of  debts  and  assets,  is  not  uncertain  because  their 
amounts  are  not  stated  if  sufficiently  identified.  The  award  need 
not  provide  a  method  of  enforcement.  This  is  often  impossible 
between  partners.  It  may  be  valid,  though  it  does  not  and  cannot 
affect  creditors  or  debtors  of  the  firm.  If  the  award  divides  the  as- 
sets and  liabilities,  and  establishes  the  rights  and  duties  of  the  part- 
ners between  each  other,  it  is  final.  If  the  submission  embraces 
all  matters  of  difference,  the  award  will  be  presumed,  if  there  is  no 
evidence  to  the  contrary,  to  include  all  matters  of  difference,  and 
that  all  matters  of  difference  were  included.  It  is  not  uncertain  if 
it  states  results  and  not  processes." 

§  235.  Allowances  for  subsistence. —  The  best  way  for  ar- 
ranging for  private  expenses  is  to  stipulate  that  each  part- 
ner may   withdraw  a  certain  weekly,    monthly  or  other 

I  Wilkinson  v.  Page,  1  Hare,  226.  2  Leavitt  v.  Comer,  5  Cush.  129. 
In  Tattersall  v.  Groote,  2B.&  P.  131,  3Ebert  v.  Ebert,  5  Md.  353.  Two 
where  a  partner  liad  paid  a  sum  of  persons  formerly  partners  submit  all 
money  or  premium  for  admittance  matters  between  tlieni  to  arbiti'ation. 
into  the  firm,  it  was  held  that  the  After  the  hearing  had  begun  they 
arbitrator  could  not  award  its  return  and  anotlier  person,  who  had  trans- 
unless  the  question  was  Bpecifically  acted  part  of  their  business,  submit 
submitted,  because  its  payment  and  to  the  same  arbitratoi's  all  unsettled 
tlie  formation  of  the  partnership  matters  between  them,  and  an 
was  the  consideration  for  sustaining  award  was  made  in  the  second  arbi- 
the  covenant  to  submit  to  arbitra-  tration  that  a  certain  sum  was  due 
tion,  and  if  tlie  articles  of  partner-  such  third  person.  Held,  the  arbitra- 
ship  were  a  nullity  the  covenant  also  tors  can  take  such  award  into  con- 
was  null.  Is  this  piece  of  ingenuity  sideration  in  determining  between 
called  for  ?  The  award  is  good  if  the  original  parties  which  of  the  two 
within  the  submission.  The  submis-  shall  pay  it.  This  is  not  an  includ- 
sion  is  just  as  good  upon  the  consid-  ing  of  matters  other  than  between 
eration  of  mutual  promises,  as  if  said  first  two  parties,  Wallis  v.  Car- 
there  had  been  no  covenant.  The  punter,  13  Allen,  19. 
only  question  is  what  was  submitted.        ••  Lamplure  v.  Cowan,  39  Vt.  480. 

237 


§237.  CONDUCT  OF  THE  BUoINESS. 

periodical  sum  for  support.  It  ouglit  to  be  provided,  also, 
that  interest  should  be  charged  upon  sums  in  excess  of 
these  amounts,  since  overdrafts  do  not  generally  bear  in- 
terest, or  perhaps  to  provide  for  interest  upon  all  sums,  so 
that  a  partner  may  receive  benefit  by  drawing  less  than  his 
amount. 

§  23  <).  Interest. —  Capital  does  not  generally  bear  interest; 
while  upon  loans  or  advances  to  the  firm,  certainly  when 
made  with  the  knowledge  of  the  other  partners,  interest  is 
chargeable;  hence,  if  it  be  desired  that  capital  draw  interest 
and  advances  not,  the  articles  should  so  state.  ^ 

§237.  Expenses. —  Provision  is  frequently  made  for  the 
payment  of  personal  expenses,  eo  nomine.  The  word  ex- 
penses, in  such  case,  will  at  least  be  confined  to  the  ordi- 
nary habit  of  persons  in  the  same  condition  of  life.  Thus, 
if  it  be  agreed  that  each  may  draw  out  only  so  much  as  is 
necessary  for  private  expenses,  usual  expenses  of  family 
and  education  of  children  may  be  included,  but  not  the 
purchase  of  plate,  furniture,  carriages,  and  the  like.^ 

Where  a  person  formed  a  partnership  with  his  son-in-law,  agree- 
ing to  furnish  a  shop,  tools,  etc.,  and  a  house  for  his  son-in-law  to 
live  in,  and  that  he  was  to  be  at  "  no  expense,"  this  means  that 
outlays  for  the  business  would  not  be  required,  and  does  not  refer 
to  the  support  of  the  family.* 

A  provision  that  each  partner  shall  pay  his  own  individual  ex- 
penses, and  that  one  member  shall  be  liable  for  all  debts  made  in 
New  York  on  account  of  the  firm  for  which  it  may  not  have  re- 
ceived full  bi'nefit,  means  that  the  individual  expenses  of  a  member 
while  at  home,  being  his  private  and  family  bills,  shall  be  at  his 
own  cost,  and  does  not  include  traveling  expenses  away  from  home 
on  the  business  of  the  firm;  nor  are  board  bills  in  New  York  debts 
on  account  of  the  firm  under  the  exception,  but  are  to  be  credited 
to  the  partner.* 

It  is  a  general  rule  that  each  partner  may  claim  reimbursement 
for  the  expenses  necessarily  incurred  by  him  in  the  prosecution  of 

^  §  781.  3  Brown   v.  Hayues,    6  Jones'  Eq. 

zstoughton  V.  Lynch,  1  Johns.  Ch.    (N.  Ca.)  49. 
467.  <\Vitlier8  v.  Witliers,  8  Pet.  355. 

238 


ARTICLES  OF  PARTNERSHIP.  §  239. 

the  business.  This  subject  will  be  considered  under  the  head  Ac- 
counting,' and  applies  even  when  the  partner  furnishes  no  capital 
and  is  to  contribute  his  services;  as  where  one  furnishes  money 
with  which  the  other  is  to  buy  land  and  sell  it  in  parcels,  the  ex- 
penses of  surveying  are  to  be  credited  to  hira." 

Yet  there  having  been  expenses  of  a  peculiar  kind  which  have 
been  disallowed,  or  as  to  which  courts  have  disagreed,  such  as 
treating  customers,  the  intention  in  regard  to  these  should  there- 
fore be  specified.^ 

§  238.  Dissolution. —  A  right  to  dissolve  upon  givir.j^- 
notice  to  copartners  is  not  unusual;  the  meaning  of  such 
a  clause  is  elsewhere  considered.*  A  provision  that,  upon 
one  partner  becoming  insolvent,  the  others  may  dissolve,  it 
seems,  does  not  mean  a  declared  or  adjudicated  insolvency 
under  insolvent  acts.'  Nor  is  insufficiency  of  assets  neces- 
sary to  constitute  insolvency,^  if  there  is  inability  to  pay 
debts. 

§  239. covenant  to  indemnify  outgoing  partner. —  It  is 

usual,  when  a  retiring  partner  assigns  his  interest  in  the 
firm  to  his  copartners,  to  receive  a  covenant  from  them  to 
pay  debts  or  to  save  him  harmless.  The  difference  between 
these  two  is  that,  on  a  covenant  to  save  harmless  or  indem- 
nify, action  lies  only  after  the  retiring  partner  has  paid 
debts;  but  a  covenant  to  pay  a  debt  is  broken  by  non-pay- 
ment, and  the  covenantee  need  not  pay  before  suing.  ^     Al- 

l§766.  tire  expense  will  be  apportioned  to 

2  Burleigh  v.  White,  70  Me.  130.  each    lot  in   the    proportion    of   its 

3  §766.  Where  each  partner  was  yield  of  mineral,  and  each  partner 
to  contribute  towards  the  expenses  charged  with  a  share  of  such  ex- 
in  proportion  to  his  interest  in  the  pense  in  the  ratio  of  his  interest  in 
lots  in  which  the  mining  operations  each  lot.  Levi  v.  Karrick,  13  Iowa, 
were  carried  on,  and  their  interests  344. 

were  in  different  proportions  in  the  ^  §  574. 

different  lots,  each  partner  is  to  be  *  Parker  v.  Gossage,  2  Cr.  M.  &  R. 

charged   his  proportion  of   the  ex-  617;   Biddlecombe  u.  Bond,  4  Ad.   & 

penses    of  raising    the    mineral    on  E.  332.                                          , 

each    lot,    but  during  the   time    in  ^  See  Bayley  r.  Schofield,  1  M.  &  S. 

which  the  accounts  were  not  kept  so  338.     And  see   Benjamin   on    Sales, 

as  to   show  what   expense  was  in-  §837,  under  Stoppage  in  Transitu, 

curred  on  each  lot  separately,  the  en-  ''  t^g  633-640. 

239 


S  241.  CONDUCT  OF  THE  BUSINESS. 

though  the  liahihty  of  the  copartners  to  pay  out  a  retiring 
partner  may  be  joint  and  several,^  yet  on  the  bond  or  cove- 
nant of  indemnity  their  liabiHty  will  be  governed  by  the 
language  of  the  covenant;^  especially  where  one  of  the  cove- 
nantors is  an  incoming  partner,  and  therefore  not  liable  at 
all,  except  upon  the  cov'enant,^  The  mere  recital  in  a  con- 
tract of  sale  or  transfer  of  a  business,  or  an  interest  in  it,  that 
the  consideration  is  the  vendee's  assumption  of  debts  or 
other  expression  of  intention  that  they  shall  pay  the  debts, 
may  amount  to  a  covenant  to  assume  them.* 

But  the  retiring  partner  will  not  preserve  the  equitable 
lien  which  he  had  while  partner  upon  the  assets  to  compel 
their  application  to  the  debts,  unless  the  lien  be  specially 
reserved;^  hence  the  contract  should  preserve  the  lien  ex- 
pressly, if  that  be  the  intention.  But  even  if  it  does  so,  the 
nature  of  this  so-called  lien  must  be  remembered;  it  is  not  a 
strict  lien,  but  a  mere  equitable  right  to  have  remaining 
assets  applied.^ 

§  240.  Outgoing  partner  not  to  compete. —  As  a  sale  uf 
the  good- will  does  not  prevent  the  seller  from  engaging  in  a 
similar  and  competing  business,^  so  long  as  he  does  not 
solicit  the  old  customers  or  represent  himself  as  continuing 
the  old  concern,  it  follows  that,  if  a  retiring  partner  is  to  be 
restrained  from  going  into  competitio^n,  a  special  covenant 
to  this  effect  is  necessary. 

§  241.  Expulsion  of  a  partner. —  A  remedy  between  part- 
ners is  sometimes  provided  by  inserting  a  power  of  expulsion 
in  the  articles.     Like  all  provisions  for  forfeitures;  this  is 

1  Beresford  v.  Browning,  L.  R.  20  the  business  alone,  and  plaintift  and 

Eq.  oG-1 ;  aff'd,  1  Ch.  D.  30.  defendants  again  became  partners, 

,    '-' Wilmer  t7.  Currey,  2  DeG.  &  Sm.  defendants  covenanting  to  indemnify 

347.  against  liabilities  connected  witii  the 

3  Sumner  I'.  Powell,  2  Mer.  30;  aff'd,  business  the  i)arties  were  formerly 

T.  &  R.  43 '.  in,  this  covenant  refers  to  the  time 

*  Saltoun  i\  Iloustoun,  1  Bing.  433.  they  were  all  together  and  not  to  tlie 

5  See  §  550.  time  when  the  plaintiff  was  alone. 

6  Where  plaintiff  and  defendants  Haskell  v.  Moore,  29  Cal.  437. 
were   in  business   together   and  de-  ^  g  664. 

feudants  retired,  plaintiff  continuing 

240 


ARTICLES  OF  PARTNERSHIP.  §  242. 

strictly  construed,^  and  does  not  exist  unless  expressly  con- 
ferred.^ Hence  a  partner's  rights  are  not  forfeited  by  failure 
to  pay  his  share  of  the  agreed  capital,^  or  his  share  of  debts 
or  expenses;*  or  refusal  to  do  acts  not  required  when  he  be- 
came a  member  and  foreign  to  the  objects  of  the  concern.' 
Nor  does  such  a  provision  in  a  partnership  for  a  certain  term 
exist  after  the  term,  the  partnership  being  continued  with- 
out further  agreement/  and  cannot  be  exercised  except  by 
the  concurrence  of  all  who  have  the  power  to  expel;  ^  and  an 
opportunity  to  explain  and  be  heard  must  be  afforded;^  and 
he  must  be  allowed  to  assist  in  making  the  accounts  to  de- 
termine his  share;  ^  and  if  annual  valuations  of  shares  are 
to  be  taken,  and  in  case  of  bankruptcy,  death  or  expulsion, 
the  valuation  was  to  determine  the  amount  due  to  the  out- 
going partner,  if  no  valuations  were  ever  made,  the  power 
to  expel  cannot  be  exercised,  for  he  will  not  be  bound  by  an 
account  afterwards  taken  by  the  other  partners.^" 

§  242.  to  1)8  exercised  bona  fide. —  The  power  must 

be  exercised  bona  fide,  and  for  the  benefit  of  the  firm,  and 
not  for  the  benefit  of  individual  partners  or  on  personal 
grounds.  The  obligation  to  exercise  good  faith  towards 
each  other  imposes  these  hmitations,  even  though  the  power 

1  Clarke  v.   Hart,   6  H.  L.   C.  633  '  Smith  v.  Mules,  9  Hare,  556. 
(aff'g  Hart  v.  Clarke,  6  DeG,  M.  &  G.  ssteuart  v.   Gladstone,  10  Ch.    D, 
232,  and  reversiug  19  Beav.  349).  626;  Wood  v.  Woad,  L.  R.  9  Ex.  190. 

2  Hubbard  v.  Guild,  1  Duer,  662.  And  see  Blisset  v.  Daniel,  10  Hare, 
But  the  solvent  partner  can  obtain  a  493 ;  1  Eq.  484 ;  Russell  v.  Russell,  14 
receiver  if  necessary.    Id.,  and  Free-  Ch.  D.  471. 

land  V.  Stansfeld,  2  Sm.  &  G.  479.  9  Sleuart  v.  Gladstone,  10  Ch.  D.  626. 

3  Piatt  V.  Oliver,  3  McLean,  27 ;  w  Blisset  v.  Daniel,  10  Hare,  498 ;  1 
Patterson  v.  Silliinan,  28  Pa.  St.  304.  Eq.  484.  Where  the  accounts  were  to 

4  Kimball  V.  Gearhart,  12  Cal.  27.  be  taken  each  year  of  all  assets  "  sus- 

5  Gorman  v.  Russell,  14  Cal.  531.  ceptible  of  valuation,"  and  an  ex- 
The  onus  to  prove  the  right  to  for-  pelled  partner  was  to  be  paid  out  ac- 
feit  existed  is  upon  the  person  who  cording  to  the  last  account,  adding 
exercised  it,  although  he  be  a  de-  for  the  time  since  a  proportion  aver- 
fendant  in  the  cause  where  it  is  in  aged  on  the  profits  of  the  three  pre- 
issue.  Patterson  v.  Silliman,  28  Pa.  ceding  yetirs,  the  good-will  cannot 
St.  304.  be  allowed  for,  because  not  suscept- 

6  Clark  V.  Leach,  32  Beav.  14 ;  aff'd,  ible  of  valuation.  Steuart  v.  Glad- 
1  DeG.  J.  &  Sm.  409.  stone,  10  Ch.  D.  626. 

Vol.  I  — 16  241 


§  243.  CONDUCT  OF  THE  BUSINESS. 

is  granted  in  general  terms  to  the  majority,  without  requir- 
ing the  existence  of  any  specific  grounds. 

Thus,  in  BHsset  v.  Daniel,  10  Hare,  403;  s.  c.  1  Eq.  484,  articles 
between  seven  partners  provided  that  it  should  be  lawhil  for  the 
hoklers  of  two-thirds  or  more  of  the  shares,  from  time  to  time,  to 
expel  any  partner  on  a  written  notice,  thus,  ''  we  do  hereby  give 
you  notice  that  you  are  expelled  from  the  partnership,"  etc.  The 
managing  partner  desired  to  get  rid  of  the  complainant  as  partner, 
because  he  objected  to  the  appointment  of  the  manager's  son  as 
assistant,  and,  by  threatening  to  the  other  partners  to  resign,  un- 
less the  complainant  was  expelled,  induced  them  to  sign  the  notice, 
first  having  induced  him  to  sign  a  balance  sheet,  in  ignorance  of 
the  intended  expulsion.  It  was  held  that  no  previous  meeting  of 
the  partners  was  necessary  to  render  the  notice  valid,  and  that  no 
grounds  for  it  need  be  stated;  but  that  the  literal  construction  of 
the  articles  would  not  be  enforced,  and  that  the  power  could  not 
be  used  for  private  benefit,  and  on  such  grounds;  and  its  exercise  in 
this  case  was  fraudulent  and  void,  and  the  complainant  was  decreed 
to  be  reinstated.' 

§  243.  Eight  to  retire  or  to  sell  .a  share. —  If  the  partner- 
ship is  for  a  fixed  term,  a  refusal  to  continue,  or  any  volun- 
tary act  causing  a  dissolution,  is  a  breach  of  contract;  hence 
if  a  right  to  retire  is  reserved,  this  should  be  stated. ^ 

The  sale  may  be  made  to  a  person  not  responsible.' 

The  right  to  retire  on'  certain  terms,  if  reserved  in  the  articles, 
is  deemed  applicable  only  to  an  existing  firm,  and  not  after  dis- 
solution; hence,  if  the  articles  permit  any  partner  to  withdraw 
during  the  first  year  on  certain  conditions,  but  one  partner  died  in 
six  months  after  the  firm  was  formed,  thus  dissolving  the  firm,  the 

iln  case  of  illegal  expulsion,  as  ners  have  the  good  will,  can  solicit 

the  party  has  not  ceased  to  be  a  part-  the  old  customers,  because  his  alieu- 

ner,  he  has  not  suffered  damage  and  ation  of  it  was  involuntary,  Dawson 

cannot  sue  at  law.     Wood  v.  Woad,  v.  Beeson,  23  Ch.  D.  504,  and  §  667. 
L.  R,  9Ex.  190.  But  if  reinstatement       2  As    to    when  this  provision   in- 

be  not  an  adequate  relief,  dissolution  volves  the  right  to  make  the  buyer 

and    accounting    may    be    decreed,  or  assignee  of  a  share  a  partner,  see 

Patterson  v.  Silliman,  28  Pa.  St.  304.  §  163. 

The  expelled  partner  going  into  busi-       » Jefferys  v.   Smith,    3  Russ.  158, 

ness  again,  althougli  the  other  part-  168. 

243 


ARTICLES  OF  PARTNERSHIP.  §  244. 

right  ceased,  and  the  only  remedy  remaining  was  the  ordinary 
suit  for  an  accounting.' 

Where  notice  in  writing  of  an  intention  to  sell  is  required  by  the 
articles  to  be  given  at  a  monthly  meeting,  a  notice  written  in  a 
book  kept  to  be  used  at  such  meetings  was  held  sufficient.^ 

If  a  right  to  sell  must  be  exercised  by  first  offering  the  share  to 
the  copartners,  and,  upon  their  refusal  to  buy,  individual  partners 
were  to  have  the  right  of  pre-emption,  an  offer  by  a  partner  to  sell, 
made  to  all  the  rest  collectively,  is  equivalent  also  to  giving  each 
an  individual  opportunity  to  buy  without  additional  offers;^  and 
the  acceptance  of  such  offer  makes  a  contract,  and  the  offer  cannot 
be  withdrawn,  or  a  dissolution  be  had  under  other  provisions.'' 

A  restriction  in  the  articles  that  neither  party  should  sell  or  as- 
sign his  share  without  the  other's  consent  will  not  be  construed  to 
apply  after  dissolution,  because  it  is  in  restraint  of  the  right  of  a 
person  to  dispose  of  his  own  property;  hence  it  is  not  operative 
after  the  concern  is  in  the  receiver's  hands  for  final  settlement.' 

Provisions  in  the  articles,  that  in  case  of  the  death  of  a  partner 
the  survivor  should  buj''  his  share,  and  if  he  refused  it  should  be 
sold,  will,  where  the  survivor  refuses  to  buy  or  admit  any  buyer 
into  the  partnership,  make  him  accountable  for  the  value  of  the 
share.* 

§  244.  Valuation  of   share  of    outgoing  partner. —  We 

shall  see,  in  treating  of  the  subject  of  winding  up,  that  in 
the  absence  of  agreement  between  partners  the  general  rule 
applied  by  a  court  of  equity  is  to  ascertain  the  value  of 
assets  by  ordenng  them  sold.  When  a  partner  retires,  dies, 
or  becomes  bankrupt,  neither  he  nor  his  executor  or  assign- 
ees in  bankruptcy  can  be  compelled  by  the  continuing  part- 
ners to  accept  the  calculated  value  of  his  interest,  but  a 
winding  up  can  be  insisted  upon  in  the  absence  of  contract 

1  Frank  v.  Beswick,  44  Up.  Can.  Q.       5  Noonan  v.   McNab,  30  Wis.  277. 

B.  1.  See,  also,  dictum  in  Noonau  v.  Orton, 

2Glassington   v.    Thwaites,   Coop.  31    id.    265.     In   the  case   cited  the 

115.  But  such  notice  had  been  adopted  partnership  was  at  will,  and  not  for 

under  previous  sales  by  the  partners,  a  fixed  term;  hence   the  restriction 

sHomfray  v.    Fothergill,    L.  R.  1  amounted   merely  to    forbidding  a 

Eq.  567.  dissolution  in  that  manner, 

*  Id.     And  see  Warder  v.  Stilwell,       ^  Featherstonhaugh  v.   Turner,  25 

3  Jur.  N.  S.  9.  Beav.  382. 

243 


§  214.  CONDUCT  OF  THE  BUSINESS. 

or  statutory  regulation.^  Even  a  stipulation  for  a  division 
of  assets  at  the  termination  of  the  partnership  gives  no  right 
to  buy  at  a  valuation  nor  dispense  with  a  sale.'^ 

To  avoid  the  inconvenient  and  often  ruinous  consequences 
of  such  enforced  settlement,  it  is  frequently  stipulated  in  the 
articles  that  on  the  retirement,  death  or  bankruptcy  of  a 
partner  his  share  shall  or  may  be  paid  out  at  a  valuation. 
On  account  of  the  constantly  fluctuating  value  of  the  share 
a  fixed  sum  can  very  rarely  be  settled  upon  in  advance.' 
The  most  common  and  convenient  way  is  by  agreement 
that  the  share  shall  be  valued  as  it  appeared  at  the  last  an- 
nual or  periodical  account,  with  an  addition  for  the  time 
since,  or  interest  on  such  valuation  in  lieu  of  profits,  or  of 
profits  averaged  on  those  of  the  past  year  or  years. 

This  method  of  valuing  the  share  is  generally  a  very  fair  and 
just  one,  provided  two  precautions  are  observed:  1st.  That  the 
fixed  property  of  the  firm,  such  as  its  real  estate,  be  included  in 
the  account,  and  that  its  nominal  value  as  therein  specified  be  pro- 
portionate to  its  actual  worth.  2d.  That  the  good  will,  Avliich,  al- 
*  though  it  may  often  be  of  great  importance,  is  rarely  estimated  in  the 
periodical  account  as  an  asset,  and  hence,  if  it  is  to  be  considered 
in  the  valuation  of  a  share,  should  be  specifically  provided  for. 

To  constitute  a  continuing  partner  it  is  not  necessary  that 
the  business  shall  be  continued  precisely  the  same  as  before 
if  it  be  substantially  the  same  business. 

This  is  illustrated  in  Read  v.  Nevitt,  41  Wis.  348,  where  N.  &  R. 
were  partners  in  the  insurance  business  as  agents  for  seven  compa- 
nies and  did  a  small  real  estate  business  also.  The  articles  provided 
that  on  dissolution  the  continuing  partner  should  pay  the  retiring 
partner  $700.  A  few  days  before  dissolution,  N.,  without  R.'s 
knowledge,  wrote  to  the  companies  of  the  expected  dissolution  and 
procured  the  agency  of  five  of  them  for  himself,  the  other  two 
ceasing  to  employ  either.  N.,  after  dissolution,  carried  on  the  busi- 
ness as  before,  and  did  a  little  land  business  for  one  old  customer, 

1  This  is  provided  for  by  statute  in       2 Cook    v.    Collingridge,  Jac.  GOT; 
some    jurisdictions    in  case   of  the   Rigden  v.  Pierce,  G  Madd.  353. 
death  of  a  partner.     See  Rammels-       '  Nevertheless,  this  was  done  and 
berg  V.  Mitchell,  29  Oh.  St.  22.  carried   into  effect  in   Cox  v.    Wil- 

loughby,  13  Ch.  D.  863. 
244 


ARTICLES  OF  PARTNERSHIP.  §  245. 

R.  transacting  no  business  whatever.  It  was  held  that  R,  was  sub- 
stantially a  retiring  and  N.  a  continuing  partner,  although  there 
was  no  agreement  or  understanding  that  such  was  their  respective 
attitudes.  This  is  not  an  acquiescence  barring  R.'s  right  of  re- 
covery, and  N.'s  letters  of  solicitation  to  the  companies  are  com- 
petent evidence  to  show  that  he  was  a  continuing  partner. 

§  245.  if  last  valuation  is  imperfect. —  In  construing 

and  applying  the  right  to  purchase  at  the  last  valuation,  the 
courts  will  regard  the  practice  of  the  partners,  the  course  of 
dealing  among  them  and  the  nature  of  the  account  actually 
taken.  If  the  account  did  not  include  all  the  assets  of  the 
firm,  it  will  not  from  that  be  supposed  that  the  share  to  be 
purchased  was  to  lose  the  benefit  of  the  non- enumerated 
property. 

Thus,  where  the  articles  provided  that  the  share  of  a  partner 
who  should  die  could  be  taken  at  the  value  according  to  the  last 
stock-taking,  and  the  partners  had  been  in  the  habit  of  laying 
aside  part  of  the  earnings  as  a  reserve  for  unexpected  losses,  and  this 
fund  was  kept  out  of  the  account,  the  executors  of  a  deceased  part- 
ner are  entitled  to  a  share  in  such  fund.'  And  if  the  articles  pro- 
vided for  half-yearly  settlemeiit  of  accounts  on  specified  dates,  and 
the  share  of  a  deceased  partner  is  to  be  taken  at  the  last  half- 
yearly  statement,  a  subsequent  parol  agreement  to  take  the  accounts 
yearly  will  not  be  deemed  to  affect  pecuniary  interests,  and  the 
value  must  be  reckoned  up  to  the  nearest  half-yearly  date  origi- 
nally specified.' 

In  Pettyt  v.  Janeson,  6  Madd.  146,  the  articles  directed  an  an- 
nual settlement  on  March  25,  and  that  if  a  partner  died  his  execu- 
tors should  receive  what  the  last  annual  settlement  showed  to  be 
due,  with  five  per  cent,  interest  in  lieu  of  subsequent  profits.  The 
settlements  were  not  regularly  made  and  the  last  one  was  on  No- 
vember 5, 1811,  and  a  partner  died  in  February,  1813.  His  executors 
claimed  profits  to  the  date  of  death  on  the  ground  that  there  had 
been  no  annual  settlements  as  agreed  upon,  while  the  surviving 
partner  desired  to  pay  the  amount,  as  it  appeared,  in  November, 
1811,  with  interest.  The  court  held  that  an  annual  settlement  was 
contemplated,  and  the  date  of  November  5  was  to  be  considered  as 

1  Coventry  v.  Barclay,  33  Beav.  1;       2  Laws  v.  Laws,  9  Ch.  D.  98. 
aud  on  app.  3  DeG.  J.  &  Sm.  330. 

245 


§  245.  CONDUCT  OF  THE  BUSINESS. 

substituted  for  March  25,  aud  required  an  accounting  as  of  Novem- 
ber 5,  1812,  aud  gave  interest  from  that  time  on  the  amount  thus 
ascertained. 

In  Simmons  v.  Leonard,  3  Hare,  581,  the  articles  provided  for  an 
annual  account,  and  if  a  partner  died  his  executor  should  receive 
the  amount  due  him  at  the  last  annual  account,  with  interest,  in 
lieu  of  subsequent  profits;  aud  that  his  executors  should  have  no 
right  to  examine  books.  No  account  was  taken  for  several  years 
prior  to  the  death  of  a  partner,  and  the  court  held  that  the  inten- 
tion of  the  parties  was  to  avoid  a  winding  up  and  sale,  and  that 
this  could  be  carried  out  by  taking  the  account  from  the  books. 
They  therefore  refused  to  require  a  sale,  but  allowed  the  executors 
to  have  an  account  from  the  books  and  to  participate  in  profits  to 
the  day  of  the  death. 

In  Browning  v.  Browning,  31  Beav.  316,  the  articles  provided 
that  five  per  cent,  interest  is  to  be  paid  on  the  capital  of  each  part- 
ner, and  that  upon  death  a  share  is  to  be  valued  as  of  the  last 
stock-taking,  with  five  per  cent,  interest  in  lieu  of  profits;  and  the 
executors  were  held  entitled  to  interest  on  the  capital  since  the 
last  annual  stock  taking,  and  also  interest  in  lieu  of  profits;  and  as 
the  articles  provided  that  capital  contributed  by  a  partner  since 
the  last  stock-taking,  was  to  be  added  into  his  share,  the  court 
held  it  to  follow  that  capital  withdrawn  in  the  interim  was  to  be 
deducted.' 

ilf  the  surviving  partners  are  to  the  £150  shall  be  deducted  not  from 

pay  a  decedent's  share  as  at  the  last  the  other's  share,  but  from  the  gross 

balance,  in  equal  instalments  every  amount,  O'Lone  v.  O'Lone,  2  Grant's 

six  months  up  to  five  years,  "with  Ch.  (Up.  Can.)  125.     If  two  partners 

interest  tliereon  from  the  date  of  the  in  the  construction  of  a  railroad  are 

balance,"  this  means  interest  on  the  to  receive  twenty  per  cent,  of  the 

instalments  remaining  unpaid,  and  contract  price  in  railroad  stock,  and 

not  on  tliuse  paid,  Ewingu.  Ewing,  one  of  tliem,  with  the  otlier's  con- 

L.  E.   8  App.  Cas.  822.     If  the  arti-  sent,  sells  out  his  interest,  the  buyer 

cles  provide  that  at  dissolution  one  becoming  a  partner  in  his  place,  both 

partner  shall   have  £150   over    and  the  original  partners  agreeing  that 

above   one-lialf    of    all  they  might  the  buyer  shall  receive  his  share  in 

then  possess,  and  that  all  profits  and  cash,  the  other  partner  must  keep 

losses  shall  be  borne  equally,  except  the  railroad  stock  towards  his  share 

that    such    partner    should   receive  of   the    earnings,  Knapp  v.   Levan- 

£150    more    than    the   other,    these  way,  27  Vt.  298. 
clauses  construed  together  mean  that 

246 


ARTICLES  OF  PARTNERSHIP.  §21*. 

§246.  representatives  and  assignees  bound. —  The 

agreement  for  the  valuation  of  a  share  as  by  taking  the  last 
annual  statements  is  binding  not  only  upon  the  parties,  but 
upon  the  representatives  or  assignees  of  any  of  them. 

But  where  the  share  of  a  retiring  partner  is  to  be  ascertained  by 
valuers  appointed  by  each,  here,  if  the  dissolution  is  caused  by  the 
bankruptcy  of  one  partner,  such  clause  cannot  be  enforced,  because 
a  partner  after  bankruptcy  cannot  retain  a  capacity  to  act,  and  no 
valuation  can  be  had.'  And  an  agreement  for  the  valuation  of  a 
share  made  subsequent  to  the  formation  of  the  partnership,  and  in 
contemplation  of  the  bankruptcy  of  the  partner,  may  be  void  on 
that  account;'  and  a  provision  that  on  bankruptcy  of  a  partner 
his  share  shall  go  to  his  copartners  is  a  fraud  on  the  bankrupt 
laws  and  void.* 

If  the  articles  give  the  right  to  surviving  partners  to  buy  the 
share  of  the  deceased  partner  at  a  valuation,  without  specifying  the 
mode  of  determining  its  value,  a  settlement  in  good  faith  with 
the  administrator  binds  the  distributees  of  the  estate.* 

§247.  specific  performance. —  Agreements  for    the 

purchase  or  sale  of  a  share  at  a  valuation  can  be  specifically 
enforced,  in  spite  of  the  uncertainty.^  Thus,  where  a  price 
was  fixed,  except  upon  certain  subordinate  and  subsidiary 
assets,  which  were  to  be  taken  at  a  valuation,  specific  per- 
formance can  be  had.*^ 

Where  an  interest  in  business  was  to  be  sold,  and  an  agreement 
as  to  paying  for  the  good  will,  "etc.,"  as  a  separate  item,  the  et 
cetera  was  held  to  refer  to  matters  connected  with  the  good  will, 
but  specific  performance  was  refused  for  other  uncertainties.'  But 
if  specific  performance  requires  the  court  to  act  not  in  making  a 
valuation,  but  in  appointing  valuers,  it  will  not  be  granted.* 

1  Wilson  V.  Greenwood,  1  Swanst.  able  consideration,    is    valid.     Gaut 

471.  V.  Reed,  24  Tex.  46,  54. 

2 Id.  sDinham  v.  Bradford,  L.  R.  5  Ch. 

i^Whitmore  v.  Mason,  2  Johns.  &  App.   519;  Maddock  v.  Astbury,  33 

Hera.  204.  N.  J.  Eq.  181. 

*  See  §  743.     An  agreement  that  on  6  Jackson  v.  Jackson,  1  Sm.  &  G. 

the  death  of  either  party  the  assets  184. 

shall  vest  in  the  survivoi",  and  he  ^  Cooper  v.  Hood,  26  Beav.  293. 

shall   be   debtor    to    the    decedent's  8  gee  Vickers  v.  Vickers,  L.  R.  4  Eq. 

executor,  if  bona  fide,  and  for  valu-  529 ;  Collins  v.  Collins,  26  Beav.  306. 

247 


§  248.  CONDUCT  OF  THE  BUSINESS. 

An  agreement  between  S.  and  L.  that  in  case  of  S.'s  going  out  S- 
should  have  no  right  to  sell  to  any  one  except  L.,  and  L.  should 
have  the  right  to  recover  S.'s  interest,  and  against  that  should  pay 
$1,000,  was  held  to  give  L.  an  option  to  buy  the  interest  at  that 
price,  and  not  to  be  an  obligation  to  do  so.' 

§  24-8.  Good  will. —  The  subject  of  the  good  will  belongs 
with  the  dissolution  clauses.     Its  nature  and  disposition  is 
considered  in  a  subsequent  chapter,-  by  consulting  which 
its  vague  and  even  uncertain  character  as  an  asset  will  ap 
pear,  and  the  consequent  importance  of  providing  for  it. 

The  nature  of  the  good  will,  and  whether  it  has  any  ex- 
istence at  all,  depends  on  the  nature  of  the  business.  In  a 
retail  trading  partnership,  it  may  have  no  existence  apart 
from  the  locality  of  the  establishment,  except  in  so  far  as  it 
is  involved  in  the  trade- marks  of  the  firm,  and  in  the  right 
to  use  the  trade  name.  In  a  professional  partnership  it  may 
have  no  existence  at  all  recognizable  by  law,  unless  an  ex- 
istence is  created  for  it  by  contract  of  the  parties;  hence,  if 
a  retiring  partner  in  such  a  partnership  is  to  have  an  allow- 
ance in  regard  thereto,  the  value  of  the  good  will  should  be 
agreed  upon. 

In  some  partnerships  the  good  will  is  involved  chiefly  in 
the  name,  as  in  case  of  a  newspaper,  and  sometimes  is  so 
important  an  element  of  value  that  the  cessation  of  busi- 
ness for  a  day,  involving  a  destruction  of  the  good  will,  would 
render  the  other  assets  of  comparatively  little  value,  as  in 
the  case  of  a  newspaper.  The  courts  will,  however,  pre- 
serve the  good  will  in  winding  up  as  far  as  possible,  if  no 
provision  has  been  made. 

The  good  will,  in  so  far  as  it  has  a  value,  is  a  partnership 
asset,  and  on  the  death  of  a  partner  does  not  belong  to  the 
survivors;  but  the  sale  of  the  good  will  by  an  outgoing 
partner  will  not  prevent  him  from  going  into  the  same  kind 
of  business,  the  utmost  effect  of  such  sale  being  to  prevent, 
his  soliciting  old  customers,  or  to  represent  himself  as  suc^ 

'  Scharringhausen  v.   Luebsen,  53       ^%651etseq. 
Mo.  337. 

248 


ARTICLES  OF  PARTNERSHIP.  §  249. 

cessor  to  the  old  firm;  hence,  without  repeating  here  matter 
that  will  appear  elsewhere,  it  is  only  necessary  to  suggest: 

1st,  That  the  articles  recognize,  and  if  possible  provide  for 
valuing  the  good  will,  if  it  ba  designed  to  recognize  it  in 
those  partnerships  where  it  has  no  legal  existence  apart 
from  contract,  as  in  partnerships  dependent  on  confidence  in 
personal  skill  and  integrity. 

2d.  If  the  surviving  or  continuing  members,  on  death  or 
the  retirement  of  a  partner,  or  expiration  of  the  partner- 
ship, are  to  become  owners  of  the  good  will,  this  should  be 
provided  for. 

3d.  If  on  dissolution  the  use  of  the  old  name  or  trade- 
marks is  to  belong  to  certain  partners,  this  should  be  stated, 
guarding  the  agreement  so  as  to  protect  retiring  members 
from  the  hazards  of  being  held  out  as  partners  still. 

4th.  If  the  partnership  is  for  a  term  the  court  will  gen- 
erally value  the  good  will,  in  case  of  premature  dissolution, 
at  so  many  years'  purchase  of  the  profits;  but  if  the  part- 
nership is  one  at  will,  this  rule  will  not  apply;  and  if  the 
good  will  is  to  belong  to  the  continuing  partners,  the  amount 
to  be  paid  to  a  retiring  partner,  if  any,  should  be  provided 
for. 

5th,  If  the  outgoing  partner  is  not  to  go  into  a  compet- 
ing business,  this  must  be  specified,  with  reasonable  limita- 
tions as  to  territorial  restriction,  as  explained  in  the  chapter 
on  Good  Will. 

§  249.  Continuance  after  decatli — Representatives  and  an- 
nuitants.—  As  death  causes  a  dissolution  of  the  partnership, 
and  as  executors  or  representatives  of  the  deceased  cannot 
take  his  place  in  the  firm  without  consent  of  the  surviving 
partners,  and  as,  on  the  one  hand,  the  sudden  dissolution 
and  winding  up  of  the  firm,  or  taking  the  decedent's  share 
out  by  sale,  may  cripple  the  surviving  partners  or  destroy 
the  prosperity  of  the  concern,  and  on  the  other  the  executor 
cannot  leave  the  share  in  at  the  hazard  of  business  without 
personal  responsibility  therefor,  unless  the  will  or  the  articles 
provide  for  it,  it  is  frequently  provided  that  the  partnership 

249 


§  219.  CONDUCT  OF  THE  BUSINESS. 

shall  not  be  dissolved  by  death.  The  difference  between  such 
provision  in  a  will  and  in  articles  is  this:  if  provided  for 
only  in  the  will,  the  other  partners  are  not  bound  to  let  in 
the  representative,  for  they  have  not  agreed  to  do  so.^  And  if 
in  the  articles,  the  surviving  partners  are  compelled  by  their 
agi-eement  to  admit  him.-  But  the  representative  is  not 
bound  to  come  in  to  the  extent  of  active  participation  in 
management  by  which  he  will  become  liable  as  a  partner 
to  third  persons,  and  if  he  refuses  the  whole  partnership 
must  be  wound  up  unless  some  other  arrangement  has  been 
made; '  as  by  valuation  of  shares  or  gradual  payments. 

The  representative  is  entitled  to  reasonable  time  and  opportunity 
for  investigation  before  electing  whether  lie  will  come  in,  but  is 
not  entitled  to  require  a  judicial  accounting."  But  doing  any  part- 
nership act  is  an  exercise  of  the  option.**  But  the  terms  on  which 
a  representative  can  come  in  must  be  strictly  complied  with.  Thus, 
if  an  administrator  can  do  so  by  giving  notice  within  three  months 
after  the  death,  a  notice  by  the  widow  within  three  months,  but 
without  having  become  administrator  until  after  the  three  months, 
is  not  sufficient.*  And  if  he  can  come  in  on  condition  he  acts  to 
the  satisfaction  of  the  survivors,  their  discretion  in  excluding  him 
is  final.' 

If  the  will  provides  for  the  continuance  of  the  partnership  by 
the  surviving  partner  for  the  benefit  of  the  estate,  or  by  him  and 
the  executor,  only  such  of  the  assets  of  the  deceased  partner's  es- 
tate as  are  already  embarked  will  be  subject  to  the  hazards  of  the 
business,  unless,  in  the  most  clear  and  explicit  terms,  the  intention 
to  risk  more,  or  to  authorize  the  executor  to  do  so,  appears.^ 

We  have  already  seen  that  a  mere  annuitant,  who  does  not  par- 
ticipate in  the  management  of  the  business,  is  not  liable  as  a  part- 
ner, at  least  in  most  jurisdictions.®  If  the  annuity'  is  payable  out 
of  profits,  either  absolutely  or  at  the  election  of  the  surviving 

1  §  158.  5  Edwards  v.  Thomas,  GG  Mo.  4G8. 

2Pager.  Cox,  10  Hare.  1G3;  Wain-  6  Holland   v.   King,    6   C.    B.    727. 

wrij;ht  v.  Waterman,  1  Ves.   Sr.  311.  And  see  Brooke  v.  Garrod,  2  De  G.  & 

3  Kershaw  v.  Matthews,  2  Russ.  62 ;  J.  62 ;  3  K.  &  J.  608. 

Downs  V.  Collins,  C  Hare,  418 ;  Madg-  ^  Jlilliken  v.  Milliken,  8 Irish  Eq.  16. 

wick  V.  Wimble,  G  Beav.  49.'5.  8  g  GOO. 

« Pigott  V.  Bagley,  McCl.  &  Y.  569.  »  g§  51-55. 

250 


ARTICLES  OF  PARTNERSHIP.  §  250. 

partner,  and  there  are  no  profits,  lie  need  not  pay  it;  lience,  if  the 
annuity  is  intended  to  be  in  the  nature  of  interest  on  purchase 
money,  or  to  be  payable  absolutely,  it  should  not  depend  upon  the 
state  of  the  earnings.' 

§  250.  Penalty. —  It  is  often  attempted  to  reinforce  a 
partner's  motives  to  keep  faith  and  observe  his  covenants 
by  affixing  an  agreement  to  pay  a  penalty  or  sum  as  liquid- 
ated damages  upon  breach.  Upon  these  clauses  the  general 
rules  must  be  remembered: 

1st.  That  if  the  amount  to  be  paid  is  by  way  of  penalty, 
it  w^ill  not  be  enforced  unless  actual  damages  to  the  amount 
be  shown. 

2d.  Calling  the  amount  liquidated  damages  will  not  make 
it  such,  but  it  may  still  be  a  penalty,  though  the  parties 
agree  that  it  shall  not  be;  and  so  calling  the  sum  a  penalty 
will  not  deprive  the  parties  of  the  right  to  have  it  treated  as 
liquidated  damages,  if  such  is  its  nature  and  the  term  pen- 
alty was  not  used  technically. 

Thus,  in  Maxwell  v.  Allen,  78  Me.  32,  one  partner  agreed  to  sell 
out  his  interest  to  the  oth^r,  an  appraisement  to  be  had  to  deter- 
mine the  amount, —  the  value  of  the  property  was  about  ^25,000, — 
and  a  stipulation  that  whichever  party  should  break  the  contract 
was  to  forfeit  $500,  was  held  to  make  this  sum  liquidated  damages. 

The  amount  may  be  treated  as  liquidated  damages  if,  independ- 
ent of  the  stipulation,  the  damages  would  be  uncertain,  conject- 
ural and  incapable  of  any  accurate  ascertainment,  provided  the 
agreed  amount  is  not  obviously  excessive. 

A  single  amount  as  liquidated  or  ascertained  damages  cannot, 
however,  be  agreed  upon  to  extend  to  breaches  of  any  of  the  sev- 
eral covenants  which  are  of  various  degrees  of  importance,  thus 
putting  them  all  upon  the  same  basis;  hence,  a  covenant  that  for 
breach  of  any  of  the  foregoing  stipulations  a  party  shall  pay  a 
named  sum  as  liquidated  damages,  and  not  as  penalty,  is  worthless, 
and  the  court  will  treat  the  amount  as  penalty.*  Nor  will  the  cov- 
enant be   separated  or   garbled,*  so  as  to  apply  to  those  breaches 

^  Ex  parte  Havper,!  Be  Q.  &  J. 'iSO.       3  To  use  the  expression  of  Cham- 
2Kemble  v.  Farren,  6  Bing.   141;    bre,  J.,  in  Astley  v.  Weldon,  2  B.  & 

Charleston    Fruit    Co.   v.    Bond,    26   P.  346. 

Fed.  Rep.  18. 

251 


§  250.  CONDUCT  OF  THE  BUSINESS. 

which  are  in  their  nature  iincertain.'  And  where  a  Large  sura  is 
agreed  on  as  damages  for  the  non-payment  of  a  small  sum,  it  will 
always  be  regarded  as  penalty  and  not  enforced.  Again,  care  must 
be  taken  to  provide  against  payuient  of  the  agreed  damages  being 
the  limit  of  compensation;'  and  to  prevent  the  covenant  being  in 
the  alternative,  whereby,  upon  payment  of  the  agreed  damages,  a 
continued  breach  will  be  authorized  and  relief  by  injunction  no 
longer  attainable. 

1  Id.  Ves.  106;  Perzell  v.  Shook,  53  N.  Y. 

2  See  Clarke  v.  Lord  Abingdon,  17  Superior  Ct.  501. 

253 


CHAPTER  11. 

CAPITAL  AND  PROPERTY. 

§251.  What  is  capital. —  The  capital  of  the  firm  is  the 
sum  of  the  amounts  agreed  to  be  contributed  by  each  part- 
ner as  the  basis  for  beginning  or  continuing  the  business.  It 
must  be  distinguished  from  advances  by  partners,  which  are 
in  effect  loans  to  the  firm  and  not  obligatory  upon  them  to 
make.  The  importance  of  distinguishing  between  the  two 
arises  particularly  with  regard  to  charging  interest,  to  with- 
drawal of  funds  by  any  partner  which  the  articles  may  pro- 
hibit to  the  extent  of  impairing  his  contribution  to  the  capi- 
tal, and  to  the  proportion  of  profits  to  which  each  is  entitled, 
which  is  often  fixed  as  in  the  ratio  of  the  capital  of  each. 

Thus,  where  four  persons  agree  to  buy  oil  lands  for  resale,  each 
contributing  in  specified  proportions  to  be  repaid  from  sales,  and  the 
lands  have  greatly  depreciated,  and  one  filed  a  bill  calling  upon 
the  others  to  make  up  the  difference  between  the  amounts  contrib- 
uted by  him  and  them,  these  contributions  are  capital  and  not  ad- 
vances, otherwise  there  would  be  no  capital,  and  hence  there  was 
no  right  to  compel  contribution.' 

Where  a  former  book-keeper  was  taken  into  the  firm,  and  an 
.amount  due  him  from  the  old  firm  was  placed  to  his  credit  on  the 
books  of  the  new,  the  fact  that  no  amount  of  capital  which  he 
should  contribute  had  been  agreed  on  shows  that  this  credit  was  not 
a  contribution  to  capital,  but  rather  a  loan  to  be  repaid  him  with 
his  share  of  profits.* 

Where  W.  contributed  a  plant,  valued  in  the  articles  at  $iO,000, 
which  was  to  continue  his  property  until  the  firm  had  repaid  him 
§24,000,  which  he  had  expended  upon  the  plant,  it  was  held  that 
his  capital  was  only  §16,000,  being  the  difference  between  these 
sums.' 

1  Foster  v.  Chaplin,  19  Grant's  Ch.        2  Topping  v.  Paddock,  93  111.  92. 
(Up.   Can.)  251.     See,  also,  Wood  v.        ^Worthington    v.     Macdonell,     9 
Scoles,  L.  R.  1  Ch.  App.  369.  Duval  (Canada),  327. 

253 


§  2o'-».  CONDUCT  OF  THE  BUSINESS. 

"Whore  the  owner  of  a  business  sells  a  half  interest  or  other  share 
to  another  who  goes  into  partnership  with  him,  the  considera- 
tion paid  by  the  buyer  is  not  a  contribution  by  him  to  capital,  but 
is  the  seller's  individual  property.' 

§  252.  The  articles  of  partnership,  or  the  will  of  a  partner, 
may  use  the  term  capital  in  a  sense  different  from  its  ordinary  and 
recognized  signification,  and  which  then  becomes  a  question  of  con- 
struction of  the  document.  Thus,  where  one  partner  died,  leaving 
a  will,  in  which,  after  speaking  of  his  interest  in  the  firm,  he  re- 
quired his  "  present  capital "  to  be  left  in  for  two  years, —  his  interest 
in  the  firm  was  then  $43,000, —  the  question  was  how  much  was 
to  be  left  in.  It  appeared  that  each  partner  had  contributed 
$20,000  as  capital,  and  the  articles  provided  that  neither  the  capi- 
tal nor  the  accrued  but  undivided  profits  were  to  be  used  by  either 
partner,  and  at  dissolution  each  was  to  draw  out  his  original  capi- 
tal, and  division  of  the  rest  of  the  assets  was  provided  for.  These 
provisions  of  the  articles  clearly  distinguished  the  interest  into 
capital  and  undrawn  profits,  and  prevented  the  $23,000  from  being 
treated  as  capitalized,  and  the  $20,000  only  is  to  remain  in.  The 
fact  that  the  withdrawal  of  the  $23,000  would  injure  the  prosperity 
of  the  business  cannot  aSect  the  construction,  since  but  for  the 
will  the  entire  $13,000  must  have  been  drawn  out." 

On  the  other  hand  a  testator  may  make  no  distinction  between 
the  primary  fund  and  its  accretions,  and  may  use  capital  in  a  gen- 
eral sense,  including  all  the  accumulated  earnings  of  the  firm  which 
remained  invested.' 

Where  no  fixed  amount  of  capital  is  agreed  on,  but  the  partners 
are  to  advance  money  as  needed  to  put  up  the  works  and  start  the 
business,  and  profits  are  to  be  divided  in  proportion  to  the  contribu- 
tions, the  reasonable  construction  is  that  contributions  should 
cease  when  the  business  becomes  self-supporting,  and  after  that 
time  a  partner  cannot,  without  the  other's  assent,  increase  his  inter- 
est in  the  profits  by  additional  contributions.* 

iBall  V.    Farley  (Ala.),    1    South.  90  Pa.    St.   143,   146.     In  Stidger  v. 

Hep.   253;  Evans  v.   Hanson,  42  111.  Reynolds,  10  Oh.  351,  money  got  on 

234.     See  Jones'  Appeal,  70  Pa.  St.  joint  credit  was  called  floating  capi- 

169.  tal   in   distinction    to  fixed  capital, 

2  Dean  v.  Dean,  54  Wis.  23.  but  this  is  incorrect;  borrowing  on 

3  As  was  the  case  in  Thomas  v.  joint  credit  is  not  creating  capital, 
Lines,  83  N.  Ca.  191.  for    an    equivalent    joint     debt    is 

*  Paxson,  J.,  in  Fulmer's  Appeal,    thereby  created. 

254 


CAPITAL  AND  PROPERTY.  §  255. 

§  253.  Other  than  money. —  Capital  need  not  be  contrib- 
uted in  money,  but  may  be  in  stock,  real  estate  or  other 
property.  The  use  of  a  patent  or  trade  secret  or  good  will, 
in  fact  anything  to  which  the  copartners  may  acquire  a  joint 
title  or  which  creditors  can  reach,  may  be  contributed  as 
capital.  But  where  one  partner  contributes  only  his  time, 
skill  and  experience,  it  is  improper  to  call  this  his  capital,  for 
it  has  none  of  the  attributes  of  capital,  and  in  case  of  loss 
counts  for  nothing  against  the  amount  due  the  other  partner 
for  contributions  of  capital  proper. 

§  254.  Contriljution  slionld  |je  free  of  liens  and  charges. — 

If  a  person  agrees  to  contribute  his  business,  stock  on  hand,  etc., 
against  a  specified  sum  to  be  paid  in  by  the  copartner,  this  business 
and  stock  goes  in  as  his  share  of  capital,  whether  its  value  exceeds 
or  falls  short  of  the  contribution  of  the  other,  and  must  be  put  in 
free  of  liens  and  without  charge  for  transportation.  If,  for  ex- 
ample, some  of  the  goods  are  in  the  hands  of  factors  and  subject  to 
their  liens,  the  amount  of  these  claims,  and  the  cost  of  delivering 
the  goods  at  the  firm's  place  of  business,  will  on  an  accounting  be 
charged  to  the  partner  who  contributed  them.' 

§  255.  Right  to  increase  it. —  When  profits  are  to  be  di- 
vided in  proportion  to  capital,  the  amount  of  each  partner's 
capital  ought  to  be  definitely  fixed.  And  in  such  case  no 
partner  can  increase  his  capital  without  the  consent  of  the 
others,  either  by  additions,  advances  or  the  use  of  undrawn 
profits.'^ 

1  Bunnell  v.  Henderson,  23  N.  J.  more  than  that  amount,  L.  is  not  a 
Eq.  174.  And  if  a  person  agrees  to  partner  in  the  excess,  and  if  less,  L. 
"advance"  teams  and  tools  to  a  is  entitled  to  an  allowance  as  dam- 
farming  partnership,  it  means  free  ages,  because  the  articles  in  effect  rep- 
of  cost,  but  they  continue  his  prop-  resented  that  such  an  amount  was 
erty.  Nichol  v.  Stewart,  36  Ark.  there.  Sexton  v.  Lamb,  27  Kan. 
613.     Where  S.  takes  L.  into  partner-    426. 

ship  in  a  stock  of  ice,  the  articles  re-  2Crawshay  r.  Collins,  3  Russ.  325; 
citing  that,  in  consideration  of  $150,  15  Ves.  218;  1  Jac.  &  W.  267;  Far- 
S.  "puts  in  the  concern  six  hun-  mer  v.  Samuel,  4  Litt.  (Ky.)  187  (14 
dred  and  sixty  tons  of  ice  now  at  R.'s  Am.  Dec.  106) ;  Cock  v.  Evans.  9  Yer. 
ice    house,"  if  S.'s  stock    of  ice   is    (Tenn.)  287,  295-7. 

255 


§  2oG.  CONDUCT  OF  THE  BUSINESS. 

Thus,  in  Fulmer's  Appeal,  90  Pa.  St.  143, 146,  a  partnersliip  of  two 
were  engaged  in  a  very  profitable  business,  and  profits  were  to  be  di- 
vided in  proportion  to  capital.  The  products  of  the  factory,  if  sold, 
would  have  realized  all  necessary  money  to  pay  expenses,  but  one  of 
the  partners,  with  a  view  of  increasing  his  own  interest  in  the  busi- 
ness, held  back  the  products  from  sale  and  paid  the  expenses  out  of 
his  own  pocket.  It  was  held  that  this  did  not  increase  his  interest, 
and  that  the  other  partner  had  a  right  to  have  the  sales  made.' 

Even  where  it  is  provided  that  the  capital  may  be  in- 
creased, a  contribution  of  money  which  can  at  any  time  be 
withdrawn  will  not  be  deemed  an  addition  to  capital;  nor 
should  such  increase  be  at  discretion,  apart  from  the  neces- 
sities of  the  business,  or  without  notice  to  the  other  part- 
ners, unless  the  articles  permit  this. 

In  Tutt  V.  Land,  50  Ga.  330,  one  partner  furnished  the  entire 
capital,  §29,000,  and  it  was  stipulated  that  if  the  necessities  of  the 
business  required  more,  and  he  supplied  it,  interest  at  a  certain  rate 
should  be  allowed  thereon.  At  the  end  of  a  year  this  partner  s 
share  of  the  profits  amounted  to  §19,000,  which  he  allowed  to  re- 
maiuv  in  the  business,  but  without  any  agreement  that  an  increase 
was  necessary  or  notice  to  his  copartner  that  the  rights  of  the  firm 
had  attached  to  the  undrawn  mon?y.  Hence,  as  he  had  never 
parted  Avith  his  individual  right  to  it,  the  interest  to  be  received 
upon  increase  of  capital  was  not  allowed.' 

§  250.  Is  not  iiidividujil  property. —  The  capital,^  in  what- 
ever shape  contributed,  becomes  at  once  the  property  of  the 
firm  and  is  no  longer  individual  property.  The  phrase  capi- 
tal, or  capital  stock,  conclusively  excludes  the  idea  of  con- 
tinued individual  proprietorship. 

Thus,  if  a  partner  was  to  contribute  money,  but,  instead 
of  so  doing,  puts  in  horses  and  wagons  already  owned  by 
by  him,  they  are  no  longer  his  individual  effects,  and  the 
partnership  creditors  have  a  priority  over  his  private  credit- 

1  For  a  further  point  in  this  case  drawn  profits  were  added  to  the 
see  §  252.  original  capital. 

2  s.  P.  Dumont  v.  Kuepprecht,  38  3  Wliere  the  use  only  of  a  thing  is 
Ala.  175.  But  see  Raymond  v.  Put-  contributed,  the  thing  itself  is  not 
nam,  44  N.  H.    IGO,   16y,  where  un-  capital  because  it  is  not  contributed. 

25G 


CAPITAL  AND  PROPERTY.  §257. 

ors  in  them  on  dissolution,  although  no  credit  upon  the 
books  was  given  him  for  them.^ 

So  if  one  partner  contributes  a  building  and  machinery  and 
the  others  cash,  the  building  and  machinery  cease  to  be  in- 
dividual property,  although  the  title  may  have  been  left  in 
the  original  owner's  name,  and  if  destroyed  by  fire,  the  firm, 
and  not  he,  must  bear  the  loss.- 

The  fact  that  one  partner  is  to,  and  does,  contribute  all  the 
capital,  and  the  other  services  only,  does  not  affect  the  rule, 
nor  should  it.  Even  if  in  such  case  the  partners  dissolve 
the  day  after  the  contribution  to  capital  was  made,  the  capi- 
tal is  joint  property,  but  the  interests  in  it  may  be  in  the 
proportion  of  all  to  nothing,'  whether  the  partnership  be 
regarded  as  a  joint  ownership  in  different  proportions,  or  the 
firm  be  considered  a  conventional  entity  distinct  from  its 
constituent  members,  and  the  members'  interests  a  mere 
claim  upon  a  share  of  surplus.  The  rules  of  distribution  on 
winding  up,  which  require  repayment  of  capital  to  the  re- 
spective partners  after  equalizing  losses  before  distribution 
between  them,  prevents  any  inequality  arising  from  the 
cessation  of  individual  ownership  in  the  contribution  of 
capital. 

§257.  Partnership  in  profits  alone. —  The  partnership 
may  exist  in  the  profits  alone  without  any  joint  interest  in 
the  property,  not  only  in  professional  and  mechanical,  but 
in  manufacturing  partnerships.*    There  is  a  difficulty  in  ap- 

1  Robiuson  v.  Asliton,  L.  R.  20  Eq.  his  own  horses ;  Crawshay  v.  Maule, 
25 ;  Ex  parte  Morley,  L.  R.  8  Ch.  1  Swanst.  523 ;  Peacock  v.  Peacock, 
App.  1026;  Clements  u.  Jessup,  30  N.  1  Camp.  45;  Ex  parte  Hamper,  17 
J.  Eq.  569.  Ves.  403 ;  Steward   v.   Blakeney.    L. 

2  Taft  V.  Schwamb,  80  III.  289.  R.  4  Ch.   603;  London  Assur.  Co.  v. 

3  See,  for  example,  Malley  i'.  At-  Dreunen,  116  U.  S.  461,  perhaps  not  a 
lantic  Ins.  Co.  51  Conn.  222;  Brad-  partnership;  Berthold  v.  Goldsmith, 
bury  V.  Smith,  21  Me.  117;  Nutting u.  24  How.  536;  Stevens  v.  Faucet,  24 
Ashcraft,  101  Mass.  300.  111.  483,   and   Fawcett  v.  Osborn,  33 

4  French  v.  Sty  ring,  2  C.  B.  N.  S.  id.  411,  one  owned  the  hides,  the 
857,  363,  in  the  earnings  of  a  race-  other  to  work  on  them  —  probably 
horse;  Fromont  u  Coupland,  2  Bing.  not  a  partnership,  though  called 
170,  and  Barton  r.  Hanson.  2  Taunt,  so;  Robbins  v.  Laswell,  27  111.  365, 
(9,  in  a  stnge  route,  each   providing  one    owned    the    cattle;    Flagg    v. 

Vol.  I  — 17  257 


§  258.  CONDUCT  OF  THE  BUSINESS. 

i 

plying  this  doctrine  to  mercantile  partnerships,  on  account 
of  the  principle  that  what  is  purchased  with  profits  is  joint 
property,  whatever  the  original  contributions  may  have 
been.'  So,  also,  property  used  to  prosecute  the  partnership 
business  may  be  owned  by  the  partners  as  tenants  in  com- 
mon and  the  partnership  may  be  confined  to  the  profits.^ 

§  258.  When  not. —  If  one  party  advances  all  the  money 
to  buy  goods  on  joint  account,  the  partners  are  deemed  to 
be  joint  owners  in  the  goods  as  well  as  in  the  profit  and 
loss.'  And  if  one  party  advances  money  to  be  invested 
in  goods,  this  may  not  create  a  partnership  at  all;*  but  if  is 
a  partnership  inter  se  the  presumption  seems  to  be  in  favor 
of  joint  ownership  in  the  goods  as  well  as  a  partnership  in 
profit  and  loss,  in  the  absence  of  a  contract  to  the  contrary.* 

Stowe,   85    111.     164,    in  the  use  of  Mo,  App.  631 ;  Syers  v.  Syers,  L.  R. 

machinery,  a  patent,  and  lands  sep-  1  App.  Cas.  174;  Chase  v.  Barrett,  4 

arately  owned ;    Graves    v.   Kellen-  Paige,  148. 

berger,  51  Ind.  66;  Stumph  v.  Bauer,  iSce  §§  261,  265. 

76  Ind.    157;    Dupuy    v.   Sheak,    57  2  Examples  of  this  will  be  found  in 

Iowa,   361;  Root  v.  Gay,  64  id.  399;  the  subjects  of  Real  Estate,   Ships 

City  Fire  Ins.  Co.  v.  Doll,  35  Md.  89,  and  Mines.    See,  also,  French  v.  Sty- 

ouly  the  use  of  a  mill  and  teams  con-  ring,  2  C.  B.  N.  S.  357,   363,  a  race- 

tributed;  Blanchard  v.   Coolidge,  22  horse  owned  in  common,  but  per- 

Pick.  151;  Howe  v.  Howe,  99  Mnss.  haps   not  a  partnership.     See,  also, 

71,  73;  Moody  v.  Rathburn,  7   Minn.  Rushing  v.  Peoples,  43  Ark.  390,   of 

89;  Han  key   v.    Becht,    25    id.    212;  goods  held  in  common. 

McCauleyu.   Cleveland,  21  Mo.  438;  3  Reid   v.   Hollinshead,   4  B.  &  C. 

Gillham  v.  Kerone.  45  Mo.  487;  State  867;  7  D.  &  R.  444;  Raba  v.  Ryland, 

ea;reZ.  u.  Finn,  11  Mo.  App.  546;  Bow-  Gow.    N.    P.    133;    Tupper  v.    Hay- 

ker  V.  Gleason  (N.  J.),    7  Atl.    Rep.  thorne,  id.  135;/ie  Gellar.  1  Rose.  297; 

885;    Champion     v.     Bostwick,    18  Miller  v.  Sullivan,   1  Cint.  Superior 

Wend.    175;  Conklin   v.    Barton,   43  Ct.  Rep.   271 ;  Soule  v.  Hay  ward.   1 

Barb.  435,  one  owned  tlie  hotel,  they  Cal.  345.     See  Julio  v.  Ingalls,  1  Al- 

were  partners  in  running  it;  Mooi'e  len,  41. 

V.  Huntington,  7  Hun,  425;  Bisbee  y.  *  Tin's  is  the  explanation  of  such 

Taft,  11  R.  I.  307 ;  Bartlett  v.  Jones,  2  cases  as  Meyer  v.  Sharpe,  5  Taunt.  74 ; 

Strob.  L.  471  (47  Am.  Dec.  600).    The  Smith  v.  Watson,  2  B.  &  C.   401  ;  3 

above    authorities    abundantly    dis-  D.  &  R.  751 ;  Rice  v.  Austin,  17  Mass. 

pose  of  the  statements  apparently  107;  Bartlett  v.   Jones,  2  Strob.    L. 

made    that    a    partnership    in     the  471,  and  those  in  §g  34-40. 

profits    and    in  the    property  must  s  Bradbury  v.   Smith,  21   Me.  117; 

go  together,  in   Dwinel  v.  Stone,  30  Knight  v.   Ogden,  2  Tenn.   Ch.  473; 

Mo.    384;    Newberger  v.   Fields,  23  Newbrau  r.  Snider,  IW.Va.  153.  And 

258 


CAPITAL  AND  PROPERTY.  §  259. 

§  259.  Examples. —  Where  A.  agreed  to  build  houses  for  B. 
at  actual  cost,  the  houses  and  lots  to  be  sold,  and  the  proceeds,  de- 
ducting cost  of  houses,  and  an  agreed  value  for,  the  land,  to  be 
divided,  if  a  partnership  at  all,  it  is  in  the  disposition  of  the  prop- 
erty and  not  in  the  buildings;  hence,  A.  is  not  liable  to  subcon- 
tractors/ 

Where  F.  advanced  money  to  build  a  mill  on  R.'s  real  estate, 
they  to  be  partners  until  the  mill  is  finished,  and  then  R.'s  money 
and  his  share  of  the  profits  are  to  be  refunded,  as  it  appeared  that 
F.  was  not  expected  to  have  any  interest  in  the  mill,  he  is  to  be 
regarded  as  a  partner  in  the  profits  alone,  that  is,  on  division,  R. 
is  to  receive  the  mill,  and  F.  his  money  back  with  profits.* 

A  provision  in  the  articles  of  a  carriage  manufacturing  partner- 
ship, that  one  partner  should  put  in  the  entire  capital,  and  the 
other,  who  was  to  give  his  whole  time,  should  have  no  interest  or 
ownership  therein,  will  not  be  construed  to  extend  to  the  stock 
made  by  the  latter,  or  under  his  supervision,  or  to  the  materials  or 
stock  bought  by  the  firm  to  carry  on  the  business;  but  means  that 
on  dissolution  the  balance  only  above  the  amount  put  in  by  the 
other  partner  should  be  divided.' 

So  if  partners  owning  separate  parts  of  the  stock  allow  a 
mingling  of  them,  so  that  the  separate  interests  cannot  be  identi- 
fied, the  whole  will  be  treated  as  joint.'* 

If  partners  in  the  profits  alone  of  cattle  invest  the  proceeds  in 
more  cattle,  the  partner  who  had  an  interest  in  the  original  herd 
assenting  that  his  profits  upon  them  shall  go  into  the  new  pur- 
chase, he  has  an  interest  in  the  latter  and  not  merely  in  the  profits, 
which  is  subject  to  execution.^ 

Where  S.  gave  N.  $300  to  buy  sheep,  S.  to  have  half  the  profits, 

if  the  firm  is  formed  to  manufact-  ^Bisbee  v.  Taft,  11  R.  I.  307. 

ure  under  a  secret  process,  the  in-  2  Pearce  v.  Pearce,  77  111.  284. 

vention  will  be  deemed  to  belong  3  Snyder  v.   Lunsford,   9  W.   Va. 

to  all  the  partners,  and  each  can  use  223. 

it  after  dissolution  unless  the  right  *Sims  v.  Willing,  8  S.  &  R.  103; 

of    property  has   been  confined    to  Chappell  v.  Cox,  18  Md.  513;  White 

one   partner.      Morison  v.   Moat,    9  Mountain  Bank  v.  West,  46  Me.  15; 

Hare,  241;  Kenny's  Patent  Button-  Laswell  v.  Robbins,  39  111.209;  King 

Holeing  Co.  v.  Somervell,  38  L.  T.  v.  Hamilton,  16  HI.  190. 

N.  S.  878;  26  W.  R.  786.  »  Hankey  v.  Becht,  25  Minn.  213. 

259 


g  261.  CONDUCT  OF  THE  BUSINESS. 

and  if  there  were  losses  he  was  to  have  no  interest,  the  partner- 
ship extends  to  the  sheep  and  is  not  confined  to  the  $300.' 

Where  G.  buys  the  stock,  good  will  and  fixtures  of  a  business, 
and  admits  B.  to  a  partnership,  reciting  the  purchase,  and  agrees 
to  give  B.  half  the  net  profits,  the  consideration  from  B.  being  his 
knowledge  of  the  business,  the  stock,  good  will  and  fixtures  re- 
main A.'s  property.* 

§  260.  Where  one  party  furnished  all  the  capital,  and  the 
other  had  no  interest  in  it,  but  was  a  partner  in  the  profits 
only,  the  separate  creditors  of  the  former  can  levy  upon  the 
capital  stock; '  but  the  separate  creditors  of  the  latter  can- 
not levy  upon  it,  because  the  debtor  has  no  interest,  and 
such  levy  is  a  trespass.  Nor  has  he  any  interest  in  tlie 
profits,  unless  profits  are  made,  and  the  other  partner  can 
show  that  there  were  no  profits.'* 

§  261.  purchases  with  profits. —  In  all  cases,  how- 
ever, even  where  it  is  stipulated  that  the  capital  shall  belong 
to  one  party,  all  property,  whether  real  or  personal,  which 
is  purchased  with  partnership  funds  or  profits,  belongs  to  the 
partnership  and  not  to  one  partner. 

A  very  important  and  interesting  application  of  this  principle  was 
made  in  Clark's  Appeal,  72  Pa.  St.  112.  There  M.  had  contributed 
to  the  partnership  of  M.  &  C.  a  foundry  and  other  real  estate,  re- 
taining the  legal  title,  but  carried  in  the  stock  account  to  his  credit; 
but  there  was  a  reservation  in  him  of  a  right  upon  dissolution  to 
withdraw  the  property  from  the  firm  at  its  original  valuation.  The 
buildings  burned  down  and  were  rebuilt  at  a  greater  cost  with  part- 
nership funds.  On  dissolution,  the  property  having  risen  in  value,  M. 
claimed  it,  and  it  was  allowed  to  him  b}''  the  master,  on  payment  of 
the  additional  cost  of  building;  but  this  was  reversed,  the  court 
not  allowing  it  to  be  withdrawn  at  all;  holding  that  M.  lost  the 

1  Newbrau    v.   Snider,    1    W.    Va.       *  Smith  v.  Watson,  2  B.  «fe  C.  401 ; 

1 53.  3  D.  &  R.  751 ;  Blanchard  v.  Coolidge, 

-'Bowker  v.  Gleason  (N.  J.),  7  AU.  23   Pick.    151;    Dupuy  v.    Sheak,  57 

Rep.  885.  lou'a,    3Cl;Gillham    v.    Kerone,  45 

'Sturaph  V.   Bauer,   76  Ind.   157.  Mo.   487;  State  ex  rel.   v.   Finn,  11 

And  see  Rushing  v.  Peoples,  42  Ark.  Mo.    App.    546 ;  Bartlett  v.  Jones,  2 

890.  Strob.  L.  471  (47  Am.  Dec.  606). 

260 


CAPITAL  AND  PROPERTY.  §  2G1. 

right  on  allowing  rebuilding  out  of  joint  funds.  The  renewed 
property  not  being  of  equivalent  value  with  the  original,  and  the 
undestroyed  part  bearing  no  relative  value,  and  the  destroyed  part 
being  incapable  of  valuation  and  not  represented  by  the  cost,  the 
property  must  be  regarded  as  a  new  thing. 

Where  the  articles  of  partnership  between  R.,  M.  and  G.  provided 
that  the  capital  should  belong  to  R.  and  M.  exclusively,  but  they  buy 
machinery  for  the  concern,  but  credit  themselves  upon  the  books 
with  the  cost  of  it,  they  thereby  make  it  the 'property  of  the  firm 
and  cannot  maintain  trover  against  G.  for  it; '  and  articles  bought 
with  partnership  earnings  belong  to  the  firm,  and  are  not  governed 
by  such  provision  in  the  articles.*  So  shares  in  a  corporation 
bought  with  partnership  funds  in  the  name  of  one  partner  are 
deemed  to  be  held  for  the  firm.^    So  of  real  estate  so  bought.* 

Insurance  issued  to  partners  on  partnership  property,  though  it 
specifies  the  amount  of  interest  of  each  partner,  is  joint  property, 
and  if  one  partner  after  a  loss  receives  his  proportion  of  insurance 
money,  he  must  account  to  the  firm  for  it;*  and  so  of  insurance 
on  the  entire  stock,  taken  out  by  one  partner,  he  must  account  to 
the  firm  for  payment  of  loss.* 

So  the  lease  of  property  for  the  firm  is  partnership  property.* 
And  if  one  partner,  in  contemplation  of  approaching  dissolution, 
procures  a  renewal  in  his  own  name,  or  does  so  after  dissolution, 
where  the  firm  had  a  privilege  of  renewal,  he  holds  the  new  term  in 
trust  for  all  the  partners;  and  so  of  any  property  acquired  in  viola- 
tion of  the  duty  to  observe  good  faith.* 

1  Robinson  v.  Gilfillan,  15  Hun,  Fed.  Rep.  737.  A  partnership  to 
267.  build  a  railroad  does  not  carry  the 

2  Snyder  r.  Lunsford,  9W.  Va.  223.  stock  already  held  by  each,  and  one 
But  the  mere  fact  that  advertising,  partner  cannot  deal  with  the  others' 
of  which  tlie  firm  had  had  the  bene-  stock  then  acquired.  Alspaugh  v, 
fit,  had  been  paid  out  of  partnership  Mathews.  4  Sneed,  216. 

funds,  does  not  give  each  partner  on       *  See  §  281. 

the  expiration  of  the  firm  a  share  in       &  Northrup  v.  Phillips,  99  111.  419. 
the    advantages  of    the      publicity.        ^  Manhattan  Ins.  Co.  v.  Wheeler,  59 

Morison  v.  Moar,  9  Hare,  241,  2(56.  Pa.  St.  227. 

3  Ex  parte  Connell,  3  Deac.  201 ;  "  Priest  v.  Chouteau,  12  Mo.  App. 
Ex  parte  Hinds,  3  De  G.  &  S.  013;  252;  85  Mo.,  898;  Morton  v.  Ostrom, 
Wilde  V.  Jenkins,  4  Paige,  481 ;  Ken-  33  Barb.  256. 

ton  Furnace  Mfg.  Co.  v.  McAlpin,  5       8  g  395. 

261 


§  203.  CONDUCT  OF  THE  BUSINESS. 

§262.  Purchases  hj  one  may  Ibe  advances. —  The  mere 
fact  that  personal  property  used  by  the  firm  is  bought  with 
the  money  of  one  partner  does  not  necessarily  give  rise  to 
the  inference  that  it  is  his/  though  it  may  be  his  and  the 
use  only  contributed.^  But  the  contribution  of  the  use  of 
the  thing,  and  not  of  the  thing  itself,  occurs  much  more  fre- 
quently in  cases  of  real  estate  than  of  personal  property. 

Lumber  wliich  a  partner  buys  with  his  own  means  and  sends  to 
the  copartners  to  be  used  in  erecting  the  firm's  mill,  and  part  is  so 
used,  and  the  rest  is  prepared  and  fitted  for  such  use,  will  all  of  it 
be  regarded  as  partnership  property.' 

So  a  partner  who  mingles  his  own  cattle  with  that  of  the  firm 
upon  its  farm,  the  business  being  that  of  raising  and  dealing  in 
stock,  will  be  regarded  as  converted  into  joint  property,  and  its  in- 
crease is  the  firm's  and  any  loss  a  joint  loss.* 

§  263.  Incoming  partners. —  Where  the  owner  of  a  busi- 
ness takes  in  partners,  it  becomes  a  question  of  intention 
whether  the  stock  becomes  partnership  property  or  not,  and 
an  intention  that  it  shall  may  be  inferred,  in  the  absence  of 
express  agreement,  from  the  nature  of  the  property,  con- 
duct and  circumstances.* 

If  in  such  case  the  incoming  partners  agree  to  pay  their 
proportion  for  the  property,  or  contribute  a  certain  amount 
in  the  future,  the  partnership  not  being  conditioned  upon 

^Ex  parte  Hare,  1  Deac.  16;  2  property  bought  by  one  with  his 
Mont.  &  A.  478.  own  funds,  to  be  used  for  partner- 

2  Cutler  V.  Hake,  47  Mich.  80,  of  ship  purposes,  is  presumed  as  be- 
teams;  Ex  parte  Owen,  4  DeG.  &  tween  partners  to  remain  his  own 
Sm.  351,  of  office  furniture;  i^ajpar^c  property,  and  if  consuilied  or  de- 
Smith,  3  Madd.  63,  of  utensils.  As  stroyed  in  the  use  and  replaced  by  the 
to  the  right  of  third  persons  to  rely  other  partners,  the  new  property  be- 
upon  the  apparent  or  reputed  owner-  longs  to  the  same  partner  individ- 
ship  of  the  stock  in  possession  of  a  ually.  Kelly  v.  Claucey,  16  Mo. 
firm,  see  §  104.  App.  549. 

'Person  v.  Wilson,  25  Minn.    189.        ^ Ex  parte  Owen,  4  DeG.  &  Sm. 

^Laswell  v.   Robbins.  39  111.    209;    351;  Parker  v.   Hills,  5  Jur.    N.    S. 
Kingv.  Hamilton,  16111.  190;  White    809;  7  id.  833.     And  see  Pilling  v. 
Mountain  Bank  v.  West,  46   Me.  15.    Pilling,  3  DeG.  J.  &  S.  163. 
There  is  one  decision  holding  that 

263 


CAPITAL  A^D  PROPERTY.  §  264. 

the  payment,  the  property  becomes  joint  from  that  time;' 
and  if  a  leasehold  be  assigned  by  the  lessee  to  the  new  firm, 
the  unexpired  terra  of  the  lease,  after  dissolution,  belongs 
to  the  partners  and  not  to  him  alone;  '^  but  not  if  the  lease 
remained  individual  property  and  its  use  only  was  contrib- 
uted as  long  as  the  firm  should  exist.' 

A  person  having  an  established  business  took  in  Lis  two  sons  as 
partners,  he  putting  in  liis  business  and  stock  as  capital,  in  esti- 
mating the  value  of  which  the  debts  due  were  put  at  twenty  per 
cent,  below  their  face,  but  in  fact  yielded  more;  and  the  excess  was 
held  to  be  part  of  the  capital  of  the  parent  and  not  profits.* 

§  <iG4r.  But  where  the  transfer  is  distinctly  in  futuro,  and 
conditioned  upon  unfulfilled  terms,  the  title  does  not  pass. 

Where  three  partners  agreed  to  manufacture  the  ore  of  a  fourth 
partner,  and  for  that  purpose  to  erect  suitable  buildings,  to  be  paid 
for  out  of  profits,  and,  having  leased  a  lot  and  put  up  buildings 
with  their  own  funds,  abandoned  the  partnei-ship  and  went  into  an- 
other business  on  the  property,  the  buildings  do  not  belong  to  the 
firm."* 

Where  C,  having  an  established  business,  took  B.  into  partner- 
ship and  contributed  the  business,  but  certain  chronometers  be- 
longing to  C.  were  put  in  under  a  stipulation  that  they  should  be 
taken  at  a  valuation,  but  the  valuation  was  never  fixed,  and  at  dis- 
solution they  were  left  with  C.  and  treated  as  his  own,  with  the 
knowledge  of  B.,  they  vsrere  held  never  to  have  been  partnership 
property.® 

L.  &  F.  were  partners  in  the  livery  business,  and  L.  bought  a 
stable  for  the  business,  agreeing  to  convey  one-half  to  F.  whenever 
the  latter  should  pay  half  the  purchase  money.  L.  died,  and  final 
settlement  by  F.,  as  surviving  partner,  showed  a  balance  due  F., 

»  Malley    v.   Atlantic   lus.    Co.    51       2  Morton  u  Ostrom,  33  Barb.  256. 
Conn.  223;  Sims  v.  Willing,  8  S.  &       sBurdon  v.  Barkus,    4    Giff.'412; 
R.    103;  Rogers  v.  Nichols,   20  Tex.    aflf'd  in  4  DeG.  F.  &  J.  43. 
719.     Here  A.  contracted   to  buj'  a       ^Cook  v.   Ben  bow,    3  DeG.    J.   & 
storehouse    and    merchandise,    and    Sm.  1. 

then  took  B.  and  C.  into  equal  inter-       » Wadsworth   v.    Manning,  4  Md. 
ests  with  him,  they  agreeing  to  pay    59. 

their  proportion, —  the  property  be-       ^Penny  v.  Black,  9  Bosw.  310. 
comes  that  of  the  firm. 

263 


^  2C5.  CONDUCT  OF  THE  BUSINESS. 

whereupon  lie  asked  specific  performance  of  the  contract  to  convey, 
but  the  court  regarded  the  agreement  to  convey  as  an  individual 
and  not  a  partnership  transaction,  and  therefore  presumably  not  in- 
cluded in  the  settlement  and  Ijalance.' 

§265.  acquired  with  joint  funds. —  If  property  is 

bought  by  a  partner  in  his  own  name  for  use  by  the  firm, 
and  is  paid  for  with  partnership  funds,  it  is  partnership 
property,^  and  the  firm  may  sue  on  warranty  in  the  sale.* 

Thus,  if  an  application  for  a  patent  by  partners  is  rejected,  but 
a  subsequent  application  by  one  partner  is  accepted,  the  patent  be- 
longs to  the  firm,  and  the  patentee  cannot  appropriate  the  whole.* 

And  articles  manufactured  by  the  firm  under  a  patent  belonging 
to  one  partner  may  be  sold  after  dissolution  as  the  property  of  the 
firm,  as  if  the  license  still  continued," 

Hence,  if  an  application  for  insurance  states  that  the  firm  owns 
the  land,  the  mere  fact  that  the  title  was  in  the  name  of  one  part- 
ner does  not  amount  to  a  misrepresentation.* 

And  if  a  partner  uses  the  funds  of  the  firm  without  authority 
to  purchase  property  for  himself,  either  in  his  own  name  or  that 
of  his  wife,  or  others,  the  other  partners  can  require  it  to  be  held 
in  ti-nst  for  the  firm.' 

A  judgment  confessed  in  favor  of  one  partner  to  secure  a  debt 
due  the  firm  is  held  by  him  in  trust  for  the  firm.*  And  so  a  judg- 
ment in  favor  of  the  firm,  and  sold  by  its  assignee  for  creditors 
and  bought  in  by  a  third  person  for  the  firm,  is  held  as  partnership 

1  Fish  V.  Lightner,  44  Mo.  268.  7  See  §§  545-6.     A  firm  of  mechan- 

2Wilde  V.  Jenkins,  4  Paige,  481 ;  ics  engaged  to  do  ceitaiu  work,  and 

Smith  V.   Smith,    5  Ves.    189,    193;  before     its     completion    successive 

Robley  v.  Brooke,  7  Bligh,  90;  Mor-  changes  in  the  firm  by  the  retire- 

ris  V.  Barrett,  3  Y.  &  J.  384;  Hersom  ment  of  some  members  and  addition 

V.  Henderson,  23  N.  H.  498;  Scott  v.  of  others  took  place,  the  old  firm,  as 

McKinney,  98  Mass.  344.     This  sub-  it  continued  liable  to  the  employers, 

ject  is  considered  further  under  Real  may  file  the  lien,  but  holds  it  for  the 

Estate,  §  279  et  seq.  benefit  of  the  last  firm,  which  owns 

'Hersom  v.  Henderson,  supra,  the  debt,  though  as  to  tlie  employer, 

*  Vetterr.  Lentzinger,  31  Iowa,  182.  the  subsequent  firms  may  be  regard- 

*Montross  v.  Mabie,  30  Fed.  Rep.  ed  as  agents  of  the  original  to  do  the 

234.  work.     German  Bank  v.  Schloth,  59 

•Collins  V.   Charlestown  Mut.    F.  Iowa,  516. 

Ins.  Co.  10  Gray,  155.  sChapin  v.  Clemitson,  1  Barb.  311. 

264 


CAPITAL  AND  PROPERTY.  §  267. 

property  and  not  as  tenants  in  common,  and  one  partner  can  sell 
it  to  close  up  business,' 

§  266.  individual  property  acquired  at  firm's  ex- 
pense.—  Proi3erty  bought  with  money  of  the  firm  may, 
however,  have  been  purchased  for  one  partner  alone,  and 
hence  is  not  partnership  assets,  but  so  much  of  the  fund 
has  been  converted  into  separate  property;  and  the  fact  that 
he  is  charged  in  the  books  with  the  cost  is  evidence  of  this 
fact.^  And  so  the  firm  may  have  lent  money  to  a  partner 
to  make  a  purchase,  in  which  case  he  is  debtor  for  the 
amount,  and  not  trustee  of  the  purchase.^ 

Where  a  partner  invented  a  macliine  and  procured  a  patent  for 
it  in  his  own  name,  but  at  the  firm's  expense;  and  the  firm  also 
paid  the  cost  of  some  litigation,  but  was  more  than  repaid  by  the 
benefit  of  the  free  use  of  the  machines,  the  patent  is  not  partner- 
ship property,  and  after  dissolution  the  other  partners  cannot  use 
or  vend  it;*  and  inventions  relating  to  improvements  in  machinery 
to  facilitate  the  partnership  business  are  the  inventor's  individual 
property,  although  he  is  bound  to  give  his  whole  time  to  the  firm's 
business.*  But  if  he  affixes  his  invention  to  the  firm's  machines, 
each  member  can  after  dissolution  continue  the  use  of  those  ma- 
chines with  the  invention  embodied  in  them.* 

§267.  Claims  outside  of  scope. —  As  partners  may  en- 
large the  scope  of  the  business  at  will,  it  follows  that  claims 
arising  in  transactions  outside  of  the  original  purpose  of  the 
firm  may  be  joint  assets  and  not  individual  property.  Thus 
where  a  firm  in  the  dairy  business  rendered  services  in  herd- 
ing cattle,  and  brought  suit  for  their  compensation  in  the 
firm  name,  it  is  no  defense  that  they  were  not  in  the  busi- 

■  1  Thursby  u.  Lidgerwood,  69  N.  Y.  Rep.   47;    McWilliams    Mfg.   Co.    v. 

198.  Blundell,   11   Fed.  Rep.  419:  23  Pat. 

2  Reno    V.  Crane,    2    Blackf.    217;  Oflf.  Gaz.  177. 

Smith  V.  Smith,  5  Ves.  189;  Walton  5  Belcher  v.  Whitteniore,  134  Mass. 

V.   Butler,   29  Beav.   428;  Ex  parte  330;  Burr  v.  De  La  Vergue,  102  N. 

Emly,  1  Rose,  64.     And  see  similar  Y".  415. 

cases  under  Real  Estate,  §  284.  6  Wade  v.   Metcalf,  16  Fed.    Rep. 

«See  Smith  v.  Smith,  5  Ves.  189,  130. 

*  Keller  v.   Stolzenbach,    20    Fed. 

265 


§  269.  '    CONDUCT  OF  THE  BUSINESS. 

ness  of  herding,  and  therefore  could  not  sue  as  a'  firm,  for 
the  compensation  would  go  to  the  firm.' 

§  268.  Claims  for  damages. —  A  judgment  in  favor  of  part- 
ners for  trespass  to  goods  of  the  firm  is  assets  of  the  partnership 
so  as  to  preclude  the  defendant  from  set-off  of  a  claim  against  one 
partner.*  So  if  one  partner  rents  property  to  the  firm,  and  an  in- 
creased expense  in  transacting  business  occurs  by  the  city  empty- 
ing a  se-wer  near  it,  damages  for  this  are  due  to  the  firm  and  not  to 
him,  although  his  rent  is  in  proportion  to  the  amount  of  business/ 
Where  a  stage-coach  partnership  was  obliged  to  pay  damages  for 
injury  to  a  passenger  of  the  coach  caused  by  its  being  upset  vvhil- 
on  a  ferry  boat,  its  claim  against  the  owner  of  the  boat  passes  by 
a  sale  of  all  its  property  to  two  of  the  partners  on  dissolution." 
On  the  other  hand  a  claim  in  favor  of  partners  in  a  coal  mine 
against  a  railroad  company  for  appropriating  part  of  their  land 
was  held  not  to  pass  by  a  sale  by  one  of  the  partners  to  the  other 
of  all  his  interest  in  the  property,  for  the  claim  is  not  part  of  the 
property.*  A  claim  for  a  penalty  for  charging  illegal  fees  to  a  firm, 
if  given  by  the  statute,  not  by  way  of  redress,  but  as  a  punish- 
ment, to  such  individual  as  shall  first  begin  suit  for  it,  cannot  bj 
recovered  by  the  firm.* 

§  269.  Personal  benefit. —  A  benefit  may  be  conferred  upon 
a  partner  for  his  exclusive  use,  for  which  be  will  not  be  ac- 
countable to  the  firm.  As  where  a  ship  belonging  to  a 
Frenchman  and  an  American  was  captured  by  a  British 
cruiser,  and  compensation  made  to  the  American  for  his  in- 
terest alone,  to  the  exclusion  of  the  Frenchman,  this  was 
held  to  be  his  individual  property. '^ 

Where  one  partner  holds  an  office,  the  emoluments  of  the 
office  are  generally  presumed  to  be  individual  property;^  but 
the  emoluments  may  be  assets  if  the  general  scope  of  the 

iTiernanu.  Doran,  19  Neb.  493.  551.     See  Thompson   v.  Ryan,  2  id. 

2  Collins  V.  Butler,  14  Cal.  223.  565,   that  if    tlic  property    itself  be 

<  Bread  v.  Lynn,  126  Mass.  3G7.  restored,  its  joint  character  has  con- 

♦Blakeley  V.  Le  Due,  22  Minn.  476.  tinned.    Moft'at    v.    Farqnharson,    2 

5  Blackislon's  Appeal,  8 1^  Pa.    St.  Bro.  C.  C.  338. 

839.  8  Alston   v.  Sims,  24  L.  J.  Ch.  553; 

6  Fowler  v.  Tnttie,  24  N.  H.  9.  1  Jur.   N.    S.  458;    Starr  v.   Case,  59 
'Campbell  v.   MuUett,  2  Swanst.    Iowa,  491  (g  224). 

266 


CAPITAL  AND  PROPERTY.  §  271. 

partnership  business  include  it,  and  it  takes  time  belonging 
to  the  firm,^  or  if  the  course  of  dealing  between  the  partners 
may  show  that  they  were  regarded  as  partnership  assets.^ 
And  in  such  case  the  holder  of  the  office  will,  upon  dissolu- 
tion, be  left  in  the  office  and  charged  with  its  value  as  an 
asset.' 

A  license  to  one  partner  to  sell  liquors  being  a  matter  of  personal 
confidence  will  not  authorize  a  sale  to  his  copartner,  nor  is  tlie 
latter  his  agent,  but  agent  of  the  firm."  A  license  to  a  firm  will 
authorize  the  continuing  partner  to  act  alone;  *  but  q_um'e  had  the 
change  bsen  by  taking  in  a  new  partner.* 

§  270.  Insurance  cases. —  The  question  as  to  the  nature  of 
the  title  of  the  partners  and  the  firm,  and  the  effect  of 
changes  of  membership,  frequently  arises  to  perplex  the 
courts  under  the  clauses  in  policies  of  insurance  against 
alienation  and  change  of  title  or  assignment  of  the  policy. 
When  a  partner  retires  or  a  new  one  comes  in,  the  adjust- 
ment of  the  insurance  policies  are  put  away  out  of  sight  and 
out  of  mind,  least  thought  of  and  most  easily  overlooked;  it 
is  to  be  wished  that  these  often  distressing  complications 
might  be  set  at  rest  by  the  companies  themselves  or  by  ap- 
propriate legislation. 

§  271.  taking  in  a  partner. —  In  Malley  v.  Atlantic  Ins. 

Co.  51  Conn.  222,  M.,  having  an  established  business,  took  in  N. 
as  partner,  who  was  to  put  in  $10,000  during  the  first  year,  but 
never  did  so.  Although  N.'s  interest  in  the  firm  may  be  worthless 
because  the  firm  owed  to  M.  the  entire  value  of  the  stock,  yet  the 
property  contributed  by  M.  has  ceased  to  be  his  alone,  and  his  in- 
surance policy,  which  contaiued  a  clause  of  avoidance  in  case  of 
change  of  title  or  possession,  or  if  M.  ceased  to  have  the  entire  and 
unconditional  ownership  for  his  own  use,  became  void.     The  dis- 

1  Collins  V.  Jackson,  31  Beav.  045,  4  Webber  v.  Williams,  36  Me.  512; 
of  one  attorney  holding  a  clerkship.  Shaw  v.  State,  56  Ind.  188. 

2  Caldwell  V.  Leiber.  7  Paige.  483,  s  United  States  v.  Glab,  99  U.  S. 
where  one  partner  acted  as  deputy  225;  State  v.  Gerhard t,  3  Jones'  L. 
postmaster,  but  the  firm's  clerks  did  178,  of  a  liquor  license.  Contra, 
the  work.  Harding  v.   Hagar,  63  Me.  515,  of  a 

3  Ambler  v.  Bolton,   L.    R.  14  Eq.  license  to  act  as  broker. 

427 ;  Smith  v.  Mules,  9  Hare,  556.  ^  United  States  v.  Glab,  supra. 

267 


g  272.  CONDUCT  OF  THE  BUSINESS. 

sentiug  opinions  do  not  deny  the  principle,  but  claim,  first,  that  no 
partnership  was  to  be  formed  until  N.  put  in  his  money;  second, 
that  an  actual  and  not  technical  change  of  title  was  intended,  and 
N.'s  ownership  was  a  mere  fiction  and  not  one  for  all  purposes; 
and,  third,  that  the  partnership  was  in  the  profits  and  not  in  the 
stock." 

But  in  Cowan  v.  Iowa  State  Ins.  Co.  40  Iowa,  551  (20  Am.  Rep. 
583),  which  the  preceding  case  denies,  the  clause  against  alienation 
•  in  a  policy  was  construed  to  mean  alienation  of  the  entire  interest, 
and  taking  in  a  partner  was  held  not  to  vitiate  the  policy  to  the  ex- 
tent of  the  original  owner  s  interest.  This  is  inconsistent  with  the 
theory  that  a  firm  is  an  entity  distinct  from  its  members." 

§  272.  retirement  of  one  of  several  partners. —  A  sale 

by  a  retiring  partner  of  his  interest  in  the  firm  to  his  copartners  was 
held  not  to  vitiate  the  policy,  either  as  a  violation  of  the  clause 
against  assignment  of  the  policy  or  any  interest  therein,  or  as  an 
alienation  of  the  property,  for  a  partner  has  no  interest  in  any 
aliquot  part  of  the  whole,  but  merely  a  share  in  the  surplus,  and 
there  may  be  no  surplus;  or,  as  other  cases  put  it,  each  owfns,  per 
my  et  per  tout,  and  the  policy  necessarily  contemplates  that  certain 
circumstances  may  place  the  entire  interest  in  one  partner  or  some 
less  than  all,  such  as  death  or  bankruptcy  of  one,  or  where,  on  dis- 
solution, one  partner  is  debtor  and  others  may  become  entitled  to 
the  whole  surplus  as  creditors.^ 

1  The  same  consequence  of  avoid-  2  go  in  Scanlon  v.  Union  F.  Ins.  Co. 
ing  the  policy  was  held  to  follow  the  4  Biss.  511.  That  an  individual  part- 
introduction  of  a  new  partner  in  an  ner  has  an  insurable  interest  in  the 
existing  firm,  in  Drennen  v.  London  partnership  property,  Converse  v. 
Assur.  Corp.  20  Fed.  Rep.  657;  re-  Citizens'  Mut.  Ins.  Co.  10  Cush.  37; 
versed  on  other  grounds,  s.  c.  116  Manhattan  Ins.  Co.  v.  Webster,  59 
U.   S.  461.     In  Liverpool,  London  &  Pa.  St.  227. 

Globe  'Ins.  Co.  v.  Verdier,  35  Mich.  3  Hoffman  v.  JEtmi  F.  Ins.  Co.  33 
395,  the  company  treated  the. policy  N.  Y.  405;  West  v.  Citizens'  Ins.  Co. 
as  valid  after  the  assured  had  taken  27  Oh.  St.  1 ;  22  Am.  Rep.  294;  Pierce 
in  a  partner,  hence  the  point  did  not  v.  Nashua  F.  Ins.  Co.  50  N.  H.  297; 
arise;  and  in  Card  v.  Phoenix  Ins.  Co.  Texas  Banking  &  Ins.  Co.  v.  Cohen, 
4  Mo.  App.  424,  S.  &  N.,  after  pro-  47  Tex.  406;  20  Am.  Rep.  293;  Dreu- 
curing  insurance,  took  in  K.  as  a  nen  v.  London  Assur.  Corp.  20  Fed. 
partner,  and  afterwards  S.  sold  out  Rep.  657  {dictum).  Contra,  Dix  v. 
to  N.  &  K.  and  the  policy  was  held  Mercantile  Ins.  Co.  22  III.  272;  Hart- 
void,  ford  F.  Ins.  Co.  v.  Ross,  23  Ind.  179. 

268 


CAPITAL  AND  PROPERTY. 


§274. 


The  theory  that  the  company  may  have  relied  upon  the  watch- 
fulness of  the  particular  partner  who  had  retired  was  said  to  amount 
to  nothing,  hecause  watchfulness  was  not  stipulated  for,  and  he 
could  abstain,  even  while  a  partner,  from  care  or  attention  for  any- 
thing in  the  polic3^' 

§  273.  retirement  of  one  of  two  partners. —  And  the 

same  reasoning  was  adopted  to  show  that  a  sale  by  one  of  two 
partners  of  all  his  interest  in  the  firm  to  his  copartner,  thus  con- 
verting the  assets  from  joint  to  separate  property,  did  not  avoid 
the  insurance.'' 

§  274.  Possession. —  As  the  partnership  property  belongs 
to  all  the  partners,  one  partner  has  as  much  right  to  its  pos- 
session as  the  others;    hence,  while  the  exclusion  of  one 


Nor  a  change  of  interests,  leaving  the 
possession  where  it  was.  Drennen 
V.  London  Assur.  Corp.  20  Fed.  Rep. 
657  (dictum);  reversed  on  other 
points,  116  U.  S.  461.  Other  cases  deny 
recovery  on  the  technical  ground 
that  no  number  less  than  all  those 
originally  contracted  with  can  sue, 
and  all  cannot  sue,  because  one  has 
no  interest  remaining.  Baltimore  F. 
Ins.  Co.  V.  McGowan,  16  Md.  45;  Tate 
V.  Mutual  F.  Ins.  Co.  13  Gray,  79; 
Tillou  V.  Kingston  Mut.  Ins.  Co.  5 
N.  Y.  405  (rev.  s.  c.  7  Barb.  570). 
This  ground  is  answered  in  West  v. 
Citizens'  Ins.  Co.  27  Oh.  St.  1,  sus- 
taining a  suit  under  the  code  in  the 
name  of  the  continuing  partners,  and 
is  ignored  in  Powers  v.  Guardian  Ins. 
Co.  136  Mass.  108,  sustaining  suit  in 
the  names  of  all  the  original  insured. 

1  Powers  V.  Guardian  Ins.  Co.  136 
Mass.  108;  49  Am.  Rep.  20;  Hoffman 
V.  ^tna  F.  Ins.  Co.  32  N.  Y.  405; 
West  V.  Citizens'  Ins.  Co.  27  Oh.  St. 
1 ;  22  Am.  Rep.  294. 

2  Burnett  v.  Eufaula  Home  Ins.  Co. 
46  Ala.  11 ;  7  Am.  Rep.  581 ;  Dermani 
V.  Home  Mut.  Ins.  Co.  26  La.  Ann. 
69;  Powers  v.  Guai-dian  Ins.  Co.  136 


Mass.  lOS;  49  Am.  Rep.  20  (the 
clause  here  was  against  a  sale  and 
not  against  change  of  title,  and  sale 
was  said  to  mean  sale  of  the  whole ; 
this  case  also  suggests  tlie  entity 
theory,  holding  that  the  firm  is  con- 
tracted with  as  one  person  and  inter- 
nal changes  are  not  considered) ; 
Pierce  v.  Fire  Ins.  Co.  50  N.  H.  297 ; 
9  Am.  Rep.  235;  Combs  v.  Shrews- 
bury Ins.  Co.  34  N.  J.  Eq.  403,  411- 
12;  Hoffman  v.  JEtna.  F.  Ins.  Co.  32 
N.  Y.  405  (aff'g  1  Robt.  501;  19  Abb. 
Pr.  235) ;  W^ilson  v.  Genesee  Mut.  Ins. 
Co.  16  Barb.  511;  Hobbs  u.  Memphis 
Ins.  Co.  1  Sneed  (Tenn.),  444,  here  a 
transfer  or  sale  of  property  was  not 
forbidden,  but  only  an  assignment  of 
the  policy ;  hence  the  buying  partner 
can  recover  for  his  own  original  in- 
terest. Texas  Ins.  Co.  v.  Cohen,  47 
Tex.  406.  Contra,  Finley  v.  Lyco- 
ming Mut.  Ins.  Co.  30  Pa.  St.  311, 
forbidding  alienation  by  sale;  Buck- 
ley V.  Garrett,  47  id.  204;  Keeler  v. 
Niagara  F.  Ins.  Co.  16  Wis.  523.  A 
dissolution  and  division  of  goods 
was  lield  a  change  of  title,  avoiding 
a  policy,  Dreher  v.  ^tna  Ins.  Co.  IS 
Mo.  128. 


269 


§  275.  CONDUCT  OF  THE  BUSINESS. 

partner  by  anofclier  is  a  violation  of  his  rights  for  which 
equity  will  afford  a  remedy,  yet  a  recovery  of  possession 
cannot  be  had  by  replevin  or  detinue,  for  the  plaintiff  is  as 
little  entitled  to  take  possession  as  the  defendant;  the  pos- 
session of  each  is  equally  rightful.^  Nor  can  one  maintain 
trovor  against  the  other,^  unless  there  was  a  destruction  of 
tlie  property  or  what  amounts  to  a  destruction  of  it,  as  far 
as  the  plaintiff  is  concerned.' 

§  275.  Ajiplications. —  Hence,  if  tlie  partnership  stock  was  all 
furnished  by  one  partner  and  was  to  remain  his  property,  and 
profits  and  losses  were  to  be  divided,  he  cannot  sustain  replevin 
nor  show  an  exclusive  title  by  proof  that  there  were  no  profits, 
and  hence  that  the  other  partner  had  no  interest,  for  this  is  equiv- 
alent to  having  an  accounting  in  a  law  case.* 

In  Crabtree  v.  Clapliam,  72  Me.  473,  it  was  held  that  if  a  partner 
gets  possession  of  the  joint  property  from  his  copartner  by  re- 
plevin, and  has  sold  it,  judgment  must  be  rendered  against  him, 
but  for  the  whole  value  and  not  half  the  value.  His  undertaking 
was  to  return  the  whole  property  in  case  he  was  not  entitled  to  the 
possession.  The  presumption  that  partners  are  equal  owners  in  the 
absence  of  evidence  will  not  obtain  (and  in  this  respect  the  former 
case  of  Clapham  v.  Crabtree,  67  Me.  326,  is  certainly  overruled), 
and  the  burden  is  on  the  plaintiff  to  show  that  less  than  the  entire 
amount  is  sufficient.  Otherwise,  any  insolvent  and  debtor  partner 
could  get  all  the  property  by  paying  one-half  to  his  defrauded  co- 
partner, and  the  hitter  would  only  have  a  worthless  judgment  for 

1  Buckley  v.  Carlisle,  3  Cal.  420;  Small,  54  Barb.  223;  Smith  v.  Book, 
Kuhn  V.  Newman,  49  Iowa,  424;  5  Up.  Can.  Q.  B.  (O.  S.)  556.  See 
Whitesides  v.  Collier,  7  Dana,  283;  Martyn  u.  Knowles,  8  T.  R.  146. 
Crabtree  v.  Clapham,  67  Me.  326;  3  Jacobs  v.  Seward,  L.  R.  5  H.  L. 
Clapham  v.  Crabtree,  72  id.  473;  Azel  464;  Mayhew  v.  Ilerrick,  7  C.  B.  229, 
V.  Betz,  2  E.  D.  Smith,  188;  Wiielen  where  a  sale  of  tlie  whole  on  an  exe- 
V.  Watmouf^h,  15  S.  &  R.  153;  Ports-  cution  against  one  was  held  to  be 
mouth  V.  Donaldson,  32  Pa.  St.  such  a  destruction  by  the  sheriff, 
202;  Course  v.  Prince,  1  Mill  (S.  Ca.),  And  see  Execution,  §  1108.  Cubitt 
413  (12  Am.  Dec.  049).  v.  Porter,  8  B.  *fc  C.    257;   Stedman 

2  Fox  V.  Hanbury,  Cowp.  445;  Har-  v.  Smith,  8  E.  &  B.  1. 

per  V.   Godaell,   L.   R.  5  Q.  B.  422;       <  Kuhn  v.  Newman,  49  Iowa,  424. 
Robinson  v.   Gilfillan,   15  Hun,  2G7;    And   see    Remington  v.    Allen,    109 
Morganstern  v.  Tiuift,    G6  Cal.  577;    Mass.  47. 
Kellogg  V.  Fox,  45  Vt.  348;  Smith  v. 

270 


CAPITAL  AND  PROPERTY.  ^5  275. 

his  balance  at  the  end  of  a  suit  for  an  accounting.  It  was  queried, 
however  (pp.  477-8),  whether  the  plaintiff  had  not,  by  replevying, 
estopped  himself  to  claim  that  it  was  partnership  property  and 
therefore  must  pay  in  full.  If  the  other  partner  was  abusing  the 
property,  an  injunction  or  receiver  should  have  been  asked  for. 

So,  where  the  plaintiff  leased  ground  for  a  nursery  to  X.  for 
five  years,  and  X.  sold  out  his  lease  and  business  to  plaintiff  and  de- 
f-iudants,  who  formed  a  partnership  in  the  nursery,  and  near  the 
end  of  the  term  plaintiff  notified  defendants  to  deliver  possession 
at  the  end  of  the  term  and  divide  the  trees,  leaving  his  share  in 
the  land  or  to  sell  them  all,  but  the  defendants  removed  the  trees 
to  another  nursery,  no  rights  of  the  plaintiff  have  been  violated, 
because  the  possession  of  one  is  the  possession  of  all.* 

So  wliere  S.  and  H.,  partners,  being  sued  on  their  notes,  H. 
pleaded  that  they  g,ssigned  a  large  amount  of  property  to  one  A., 
to  pay  their  creditors,  and  that  the  creditors,  including  the  plaint- 
iffs, took  the  property  from  the  assignee's  hands  and  delivered  it 
to  S.  to  dispose  of  for  the  creditors  without  H.'s  knowledge,  and 
thereby  he  suffered  damage,  this  is  no  defense  for  a  restoration  of 
possession  to  one  partner,  and  his  acceptance  is  within  his  powers. 
The  defense  is  also  bad  as  being  a  set-off  in  favor  of  one  partner 
in  an  action  against  both.* 

Where  J.  bought  corn  of  M.,  not  disclosing  that  it  was  for  the  firm 
of  J.  &  C,  C.  has  the  right  to  take  possession,  if  the  contract  is 
completed,  without  being  liable  for  a  conversion.  In  such  case,  if 
he  got  possession  by  replevying  in  his  own  name  instead  of  in  the 
joint  names  of  J.  &  C,  the  possession  so  obtained  will  be  referred 
to  the  right  of  property  and  he  is  not  liable  ex  delicto? 

So  one  partner  cannot  sue  another  in  trespass  for  any  action  of 
his  in  relation  to  the  property,'*  even  if  one  sold  the  entire  stock 
against  the  will  of  the  other,  and  he  and  the  buyer  broke  into  the 
store  and  took  the  goods.*  As  one  partner  cannot  replevy  from 
another,  so  he  cannot  replevy  from  the  bailee  of  the  other  partner.* 

1  Portsmouth  v.  Donaldson,  32  Pa.  ing  that  had  the  goods  been  actually 

St.  202.  destroyed  perhaps  an  action  might 

2Cooley  V.  Sears,  23  111.  613.  lie;  Danau  Gill,  5  J.  J.  Mar.  242;  20 

aConkliri  v.  Leeds,  58  111.  178.  Am.  Dec.  255;  Whitesides  v.  CoUier, 

*  Whitesides  v.  Collier,  7  Dana,  283.  7  Dana,  283;  Mason  v.  Tipton,  4  Cal. 

*  Montjoys    v.    Holden,   Litt.    Sel.  276. 

(  as.  447  (12  Am.  Deo.   331),   suggest-       6  Per  Hunt,  C.  J.,  Tell  v.   Beyer, 

271 


^277.  CONDUCT  OF  THE  BUSINESS. 

§  276.  We  have  seen  that  in  certain  cases  the  partners 
could  sell  the  entire  stock,  but  in  case  of  fraudulent  collusion 
between  the  seller  and  buyer  the  other  partner's  right  to  the 
possession  is  not  taken  awa)''  and  he  can  sue  the  vendee  in 
trover.  He  is  not  to  be  embarrassed  by  the  theory  that  at 
least  the  interest  of  the  seller  passed  because  it  deprives  him 
of  the  benefit  of  the  delectus  personarum}  A  sale  by  one 
partner  of  his  entire  interest  in  the  firm  to  a  third  person  is 
a  dissolution  of  the  partnership,  and  the  remaining  partner 
has  the  right  to  the  possession  in  order  to  wind  up.'^ 

Injunction  against  the  buyer  and  the  guilty  partner  will 
be  granted." 

§  277.  No  crime  against  possession. —  For  the  same  rea- 
sons a  partner  cannot  commit  a  crime  by  any  acts  relating 
to  the  possession  of  the  partnership  property;  for  example, 
he  cannot  be  guilty  of  embezzlement  of  the  funds,  for  he  is 
both  principal  and  agent;*  or  larceny  or  burglary.^    So  if  a 

38  N.  Y.  161,  162;  but  in  this  case  the  principle    was   held  to  apply  even 

defendant  did  not  deny   the  plaint-  where  one  partner  had  agreed  that 

iff's  ownership,  but  merely  his  own  the  other  might  sell  his  interest,  for 

possession,  and  hence  could  not  rely  this  is  not  an  agreement  to  give  up 

on    the    other    partner's  title.     See  the  right  of  property,  and  the  buyer 

Keegan  v.  Cox,  116  Mass.  289.  cannot  sue  the  other  partner  for  con- 

iFox  v.  Rose,  10  Up.  Can.  Q.  B.  16.  version  if  he  sells.     Chase  v.  Scott, 

See,    also,    Canal   Co.    v.    Gordon,  6  33  Iowa,  309. 

Wall.  561,  abstracted  in  S  383.  3  Sloan  v.  Moore,   37  Pa.    St.    217: 

nieaher  v.  Cox,  1   Sel.  Cas.   Ala.  High  v.  Lack,  Phil.  (N.  Ca.)  Eq.  175; 

156;  37  Ala.  201;  Nichol  v.  Stewart,  Halstead  v.   Shepard,    23   Ala.    558, 

36  Ark.  612,  621;  Miller  v.  Brigham,  573. 

50  Cal.  615;  Reece  v.  Hoyt,  4  Ind.  ••Soule  v.  Hay  ward,  1  Cal.  345; 
169;  Chase  v.  Scott,  33  Iowa,  309;  State  v.  Butman,  61  N.  H.  511;  Na- 
Flynn  v.  Fish,  7  Lansing,  117;  Hor-  poleon  v.  State,  3  Tex.  App.  522. 
ton's  Appeal,  13  Pa.  St.  67;  Mont-  Here  N.  and  R.  were  to  become  part- 
joys  u.  Holden,  Litt.  Sel.  Cas.  447;  ners  with  equal  capitals.  R.  handed 
12  Am.  Dec.  331;  Mason  v.  Tipton,  4  his  contribution  to  N.,  who  kept  the 
Cal.  276;  Crosby  v.  McDermitt,  7  money  and  abandoned  the  enterprise. 
Cal.  146;  Blaker  v.  Sands,  29  Kan.  N.  was  held  guilty  of  embezzlement, 
551,  558.  The  buyer  has  no  right  to  on  the  ground  that  no  partnership 
participate  in  the  management,  and  had  been  consummated, 
his  only  remedy  is  by  suit  for  an  ac-  5  Jones  V.  State,  76  Ala.  8,  where 
counting  to  have  the  seller's  share  one  partner  killed  the  other  while 
ascertained  and  paid  over;  and  this  the  latter  was  trying  to  take  money 

273 


CAPITAL  AND  PROPERTY.  §277. 

partner  entitled  to  commissions  from  the  firm  falsely  repre- 
sent that  he  has  made  a  sale,  and  so  got  the  commission,  he 
cannot  be  indicted  for  false  pretenses,  but  it  is  merely  an 
item  in  the  account.^  So,  also,  one  partner  cannot  arrest 
his  copartner  on  an  allegation  of  fraudulent  removal  or  em- 
bezzlement of  the  partnership  property.^  But,  as  the  crime 
of  conspiracy  may  consist  in  doing  a  civil  wrong,  if  a  part- 
ner conspires  with  a  person  to  swindle  the  firm  by  false  ac- 
counts, he  is  indictable  for  conspiracy,  although  had  he  so 
acted  alone  it  would  not  have  been  a  crime;  ^  and  a  partner 
who  forcibly  ejects  a  copartner,  and  threatens  him  if  ho 
ever  enter  again,  may  be  bound  over  to  keep  the  peace,* 

If  a  partnership  asset  has  become  individual  property,  it 
can  then,  of  course,  become  the  subject  of  crime  by  a  co- 
partner.* 

Generally  if  property  belonging  to  the  firm  or  placed  in 
its  possession  is  taken  by  a  third  person  from  the  manual 
possession  of  one  partner,  all  the  partners  and  not  he  alone 
must  bring  the  replevin  to  recover  it.''  There  may,  however, 
be  cases  where  the  title  still  remains  in  one  partner,  in  which 
case  he  can  maintain  replevin  in  his  own  name.^ 

from  the  drawer,  and  this  was  held  ^Reg.  v.  Evans,   9  Jur.  N.  S.  184. 

not  to  reduce  the  crime  from  murder  2Cary  v.   WiUiams,  1    Duer,   667; 

to  manslaughter.     Alfele  v.  Wright,  Soule  v.  Hayward,  1  Cal.  345. 

17  Oh.  St.  238,  one  partner  saying  of  ^Reg.  v.  Warburton,   L,  R.  1   Cr. 

theother  that  he  broke  into  the  store  Cas.  274;  11  Cox,  C.  C.  584. 

and  carried  away  the  goods,  is  not  <  The  Queen  v.  Mallinson,  16  Q.  B. 

slanderous  pe?-  .se,  for  it  charges  no  367. 

crime.     In     Becket    v.     Sterrett,    4  5  Thus,  in  Sharpe  v.  Johnston,  59 

Blackf.  499,  a  charge  of  pilfering  out  Mo.  557,  partners  dissolved,  adjust- 

of  the  store  was  held  actionable,  be-  ing  their   affairs,    and  to    one   was 

cause  it  might  not  refer  to  partner-  allowed  certain  drafts  and  notes  as 

ship   money   alone.     Chancellor  Za-  cash;  the  other  being  subsequently 

briskie    expressed    himself    as    not  employed  to  collect  them,  does  so  as 

satisfied  that  a  partner  could  not  be  mere  agent ;  hence,  a  prosecution  for 

guilty  of  larceny  of  the  goods  of  tlie  embezzlement,   if    he    converts  the 

firm,  when,  being  indebted  to  it,  he  proceeds,  is  not  malicious, 

stealthily  removes  and  appropriates  6  gaul  v.  Kruger,  9  How.  Pr.  569. 

them,  Sieghortner   v.    Weissenborn,  ''In   Boynton   v.   Page,   13   Wend. 

20  N.  J.  Eq.  172,  185  (rev.  on  other  425,  one  partner  was  to   find  stock 

points,  21  id.  483) ;  but  the  chancel-  for  harness  making  and  the  other 

lor  is  in  a  minority.  was  to  work  it  up ;  a  third  person 
Vol.  1-18                            273 


g278.  CONDUCT  OF  THE  BUSINESS. 

§278.  Exclusive  right    of   possession  in  one. —  But    if 

the  partners  have  agreed  that  one  of  their  number  shall 
have  exckisive  possession,  as  they  may  do,  whether  it  be  by 
covenant  in  the  articles  or  subsequent  delivery  by  a  debtor 
partner  as  security  to  the  creditor. partner,  this  right  of 
possession,  if  violated,  may  be  enforced  by  replevin,  not 
only  against  third  persons,^  but  against  copartners,^  or  those 
holding  for  them.' 

And  notice  of  dissolution,  and  that  one  vi^ould  thereafter 
conduct  the  business,  is  evidence  of  such  possession;  *  or  an 
action  against  the  copartner  can  be  brought  in  covenant,  if 
the  right  of  exclusive  possession  is  given  under  seal;  but  an 
action  on  case  will  not  lie.' 

When  the  goods  have  been  divided  and  the  joint  owner- 
ship severed,  each  taking  part  in  severalty,  trover  will  lie  by 
one  for  his  share  against  the  bailee  from  the  other,  who  had 
wrongfully  pledged  the  share  after  division.® 

having  taken  possession  of  the  stock  2  ivey  v.  Hammock,  C8  Ga.  428 ; 
before  it  was  worked  up,  the  partner  Belcher  v.  Van  Dusen,  37  111.  281. 
who  was  to  furnish  the  stock  re-  »  Harkey  v.  Tillman,  40  Ark.  551 ; 
plevied  it  in  his  own  name  alone;  it  Kahleu.  Sneed,  59  Pa.  St.  388;  Bart- 
was  held  that  he  could  do  so,  for  the  ley  v.  Williams,  66  id.  329;  Jenkins 
stock  might  be  considered  as  his  un-  v.  Howard,  21  La.  Ann.  597;  Hum 
til  work  had  begun  upon  it,  since  any  v.  Morris,  44  Miss.  314. 
other  stock  would  have  sufficed  the  *  Kelly  v.  Murphy  (Cal.),  13  Pac. 
copartner.     The    defense,    however,  Rep.  467. 

did  not  plead  that  title  was  in  the  8  clay  v.  Grubb,  1  Litt.  (Ky.)  222. 

firm.  6  "Williams  v.  Barton,  3  Bing.  139 ; 

»  Bostick  V.  Brittain,  25  Ark.  482.  aff'g  5  B.  &  Aid.  395. 

274 


*  CHAPTER  HL 

REAL   ESTATE. 

§  279.  The  subject  of  the  partnership  real  estate,  its 
treatment  as  converted  into  personal  property  when  held  as 
part  of  the  capital  or  stock  of  a  partnership,  its  consequent 
devolution  in  case  of  death,  and  the  effect  on  the  treatment 
of  the  legal  title,  are  so  important  as  to  require  a  separate 
chapter.  Tlie  English  law  and  our  own  are  in  general  har- 
mony upon  the  subject,  except  that  with  us  equity,  in  the 
absence  of  a  clear  intention  to  the  contrary,  treats  the  real 
estate  as  converted  into  personalty  only  to  the  extent  of 
partnership  necessities,  and  not  for  mere  purposes  of  di- 
vision of  the  surplus  beyond  those  necessities,  whereas, 
in  England,  the  conversion  is  out  and  out,  and  the  sur- 
plus goes  to  the  personal  representative  and  not  to  the 
heir. 

The  first  thing  to  be  determined  is  whether  land  is  con- 
verted into  personalty  at  all;  that  is,  whether  it  is  partner- 
ship property  or  held  as  individual  property  in  a  tenancy  in 
common.  Land  may  be  either  an  adjunct  to  a  partnership 
which  deals  in  other  things  or  it  may  itself  be  the  commod- 
ity dealt  in.  This  last  kind  of  partnership  is  necessarily 
post-feudal.  Under  the  influence  of  the  feudal  system, 
where  land  was  reserved  as  the  reward  of  the  soldier  or  as 
the  basis  of  the  military  organization  of  the  community, 
placing  it  beyond  the  control  of  the  occupant  or  the  reach 
of  his  creditors,  such  a  partnership  could  not  exist.  But  as 
these  influences  relaxed  and  real  estate  became  gradually 
emancipated  from  feudal  restrictions,  land  became  more 
and  more  a  mere  auxiliary  to  commercial  enterprise,  and 
may  now  be  the  commodity  or  stock  dealt  in  by  a  partner- 

275 


§  2S0.  CONDUCT  OF  THE  BUSINESS. 

ship  formed  for  the  purpose  of  such  dealing  generally  or 
for  the  disposition  of  a  designated  tract.  ^  , 

But  when  land  is  a  mere  incident  or  investment  in  an 
ordinary  partnership  it  becomes  somewhat  difficult  to  ascer- 
tain whether  it  is  partnership  property  or  not. 

§  280.  When  it  is  part  of  tlie  joint  stock. —  The  legal  title 
of  real  estate,  if  in  the  name  of  more  than  one  partner, 
is  always  held  by  them  as  tenants  in  common,  but  in  equity 
it  may  be  partnership  property. 

And  there  is  as  much  difference  between  individual  and 
partnership  real  estate  as  in  personal  property.  In  the  one 
case  partnership  creditors  may  have  their  usual  priorities  in 
distribution  in  equity,  and  a  creditor  partner  a  lien  for  his 
advances;  on  dissolution  the  liquidating  or  surviving  part- 
ner has  a  right  to  resort  to  the  property.  A  mortgage  by  a 
partner  will  bind  his  individual  share  if  it  be  individual 
property,  but  if  it  is  partnership  property,  will  reach  only 
a  share  in  the  surplus  after  paying  all  partnership  debts, 
subsequent  as  well  as  prior.  So  partition  may  be  had  of 
property  owned  in  individual  shares  as  individuals,  but  if 
it  be  partnership  real  estate  a  court  of  equity  will  no  more 
grant  partition  than  it  would  decree  a  partial  accounting, 
unless  there  are  no  debts  or  equities  inter  se  to  be  adjusted, 
and  a  variety  of  other  differences  would  doubtless  occur  on 
reflection. 

That  real  estate  is  held  in  the  joint  names  of  several  per- 
sons, and  that  those  persons  are  in  partnership,  does  not 
make  the  property  partnership  assets  if  not  shown  to  have 
been  bought  with  the  joint  funds  for  partnership  purposes.' 
Whether  real  estate  is  partnership  or  individual  property  is 

iFor  example,  the  following  were  417,  432;  Chester  v.  Dickerson,  54  id. 

real  estate    partnerships:    Darby  v.  1  (13  Am,  Rep.  550);  53  Barb.  349;  45 

Darby,  3  Drew.  495;  In  re  Warren,  How.    Pr.    326;  Gray  v.   Palmer,    9 

2  Ware,  322 ;  Clagett  v.  Kilbourne,  1  Cal.  616. 

Black,  346;  Thompson  v.   Bowman,        2  Thompson  v.   Bowman,  6  Wall. 

6  Wall.    316 ;  Dudley  v.   Littlefield,  316.     See  §  287. 
21  Me.  418;  Sage  v.  Sherman,  2  N.  Y. 

27G 


REAL  ESTATE.  §  281. 

purely  a  question  of  the  intention  of  the  partner,  and  as 
this  is  rarely  expressed  in  the  deed,  becomes  —  except  in 
Pennsylvania^  —  a  matter  of  inference  and  evidence.  The 
most  usual  and  most  controlling  considerations  v^hen  the 
articles  are  silent  are  the  ownership  of  the  funds  with  which 
the  property  was  paid,  the  uses  to  which  it  was  put,  or  how 
it  was  entered  and  carried  in  the  accounts  of  the  firm. 
These  evidences  must  be  examined  separately. 

§  281.  procured  with  partnership  funds. —  Real  es- 
tate bought  or  leased  with  partnership  funds  for  partner- 
ship purposes,  and  applied  to  partnership  uses,  is  deemed  to 
be  partnership  property  whether  the  title  is  in  all  the  partners 
as  tenants  in  common,  or  in  less  than  all,  in  the  absence  of 
any  agreement.  There  is  no  necessity  for  any  agreement  in 
such  cases.  The  statute  of  frauds  has  no  application,  but  the 
title  is  held  in  trust  for  the  firm.- 

i§  239.  225,  237;  Willet  v.  Brown,  65  id.  138; 

2  Crawshay  v.  Maule,  1  Swanst.  27  Am.  Rep.  265 ;  Hogle  v.  Lowe,  12 
495,  518;  Hoxie  v.  Carr,  1  Sumner,  Nev.  286;  Jarvis  v.  Brooks,  27  N.  H. 
C.  C.  173;  Shanks  v.  Klein,  104  U.  37;  59  Am.  Dec.  359;  Cilley  v.  Huse, 
S.  18;  Oflfutt  V.  Scott,  47  Ala.  104,  40  id.  358;  Messer  v.  Messer,  59  id. 
125;  Little  v.  Snedecor,  53  id.  167;  375;  Matlack  v.  James,  13  N.  J.  Eq. 
Hatchett  v.  Blanton,  73  id.  43a;  126;  National  Bank  v.  Sprage,  20  id. 
Espy  V.  Comer,  76  id.  501 ;  McCauley  13  (reversed  on  other  points,  21  id. 
V.  Fulton,  44  Cal.  355;  Sigourney  v.  530);  Campbell  v.  Campbell,  30  id, 
Munn,  7  Conn.  11;  Matlock  v.  Mat-  415;  Fairchild  v.  Fairchild,  64  N.  Y. 
lock,  5  Ind.  403;  Morgan  v.  Olvey,  471,  479  (aff.  5  Hun,  407);  Buchan 
53  id.  6;  Loubat  u.  Nourse,  5  Fla.  350;  v.  Sumner,  2  Barb.  Ch,  105;  Smith 
Robertson  u.  Baker,  11  id.  193;  Price  v.  Tarlton,  id.  336;  Delmonico  v. 
V.  Hicks,  14  id.  565;  Buck  v.  Winn,  Guillaume,  2  Sandf.  Ch.  366;  Cox  v. 
11  B.  Hon.  320;  Divine  v.  Mitchum,  McBurney,  2  Sandf.  561;  Deming  v. 
4  id.  488;  41  Am.  Dec.  241;  Scruggs  Colt,  3  id.  284;  Rank  v.  Grote,  50  N. 
V.  Russell.  McCahon(Kan.),  39;  Bry-  Y.  Superior  Ct.  275;  Hanff  v.  How- 
ant  V.  Hunter,  6  Bush,  75;  Burnam  ard,  3  Jones  (N.  Ca.),  Eq.  440;  Sum- 
V.  Burnam,  6  id.  389;  Spalding  v.  mey  v.  Patton,  1  "Winst.  (N.  Ca.)  Eq. 
Wilson,  80  Ky.  589 ;  Buff um  v.  Buf-  52 ;  Bank  v.  Sawyer,  38  Oh.  St.  339, 
fum,  49  Me.  108;  Burnside  v.  Mer-  342;  Greene  v.  Greene,  1  Oh.  535;  18 
rick,  4  Met.  537;  Dyer  v.  Clark,  5  id.  Am.  Dec.  042;  Page  v.  Thomas,  43 
563;  39  Am.  Dec.  697;  Howard  v.  Oh.  St.  38;  Tillinghastr.  Champlin,  4 
Priest,  5  id.  582;  Scruggs  v.  Blair,  R.  I.  173;  Bowman  u.  Bailey,  20  S. 
44  Miss.  406 ;  Carlisle  v.  Mulhern,  Ca.  550 ;  Hunt  v.  Benson,  2  Humph. 
19  Mo.  56;  Crow  v.    Drace,    61  Mo.  (Tenn.)  459;  Willis  v.   Freeman,  35 

277 


§  282.  CONDUCT  OF  THE  BUSINESS, 

So  of  property  originally  contributed  as  stock,  or  if  orig- 
inally paid  for  by  each  out  of  his  separate  means,  or  brought 
into  the  use  of  the  firm  at  its  formation,  and  subsequently 
agreed  to  be  converted  into  partnership  property,  it  becomes 
part  of  the  capital.^ 

§  282.  improvements  out  of  joint  fund. —  If  the  land 

is  owned  in  undivided  interests  by  persons  who  compose  a 
firm,  but  had  been  paid  for  by  the  individual  funds  of  the 
owners,  but  is  improved  out  of  partnership  funds  for  part- 
nership purposes,  or  part  of  the  purchase  money  is  paid  for 
with  the  firm's  assets,  and  the  property  is  used  for  partner- 
ship purposes,  it  is  partnership  property,^ 

And  so,  though  the  land  belonged  to  one  partner,  yet,  if 
the  firm  places  valuable  and  permanent  improvements  upon 
it  for  firm  purposes,  and  essential  to  the  firm,  this  shows 
an  intention  to  make  it  firm  property,  and  the  firm  owes 
him  the  value  at  the  time  of  the  appropriation;'  though 

Vt.  44 ;  Dewey  v.  Dewey,  35  id.  555 ;  to  tlie  distillery,  and  that  the  disil  - 

Pierce  v.  Trigg,  10  Leigh  (Va.),  406;  lery  might  well  be  an  incident  to  the 

Brooke  v.  Washington,  8  Gratt.  248  land,  and   that  the  creditors  of  the 

(56  Am.  Dec.  143) ;  Diggs  v.  Brown,  firm  were  entitled  to  priority. 

78  Va.  292;  Hardy  v.    Norfolk   Mfg.  iSigourneyu  Munn,    7  Conn.   11; 

Co.  80  id.    404;  Martin  v.  Smith,  25  Hogle  v.  Lowe,  12  Nev.  286;  Way  v. 

W.    Va.    579;  Bird   v.    Morrison,    12  Stebbins,  47  Mich.  296;  Wiegand  v. 

Wis.  [lyS];  Bergeron  v.  Richardott,  Copeland,  14  Fed.  Rep.    118;  s.  C.  7 

55  Wis.  129;  Martin  r.  Morris,  62  id.  Sawy.    442;  Ai'nold  v.  Waiuwright, 

418;  Conger  v.  Piatt,   25  Up.    Can.  6  Minn.  o58. 

Q.  B.  277.  And  if  bought  by  one  2 Roberts  v.  McCarty,  9  Ind.  16; 
partner  in  the  name  of  a  third  per-  Smith  V.  Danvers,  5  Sandf.  669; 
son,  it  can  be  followed  and  recov-  Lane  v.  Taylor,  49  Me.  252;  Collins 
ered  if  no  bona  fide  riglit  intervene,  v.  Decker,  70  id.  23;  Deveney  v.  Ma- 
See  §8  544-546.  In  Spalding  v.  Wil-  honey,  23  N.  J.  Eq.  247;  Godfrey  v. 
son,  80  Ky.  589,  on  a  contest  between  White,  43  Mich.  171 ;  Bopp  v.  Fox,  63 
partnership  creditors  and  individual  111.  540;  Geopper  v.  Kinsinger,  39 
creditors  of  a  partnership  in  a  distil-  Oh.  St.  429;  Winslow  v.  Chiffelle, 
lery,  as  to  whether  six  hundred  Harp.  (S.  Ca.)  Eq.  25.  See  Newton  tJ. 
acres  of  land  bought  with  partner-  Doran,  3  Grant's  Ch.  (Up.  Can.)  353. 
ship  funds,  and  conveyed  to  the  part-  SBallantine  v.  Frelinghuysen,  38 
ners  as  tenants  in  common  and  used  N.J.  Eq.  266;  Lane  v.  Tyler,  49  Me. 
to  raise  corn  for  the  distillery,  was  252,  253.  That  it  may  be  considered 
individual  or  partnership  property,  as  partnership  property  to  tiie  extent 
itisheld  that  the  land  was  an  incident  of  the  value  of  the   improvements, 

278 


REAL  ESTATE.  §  284. 

merely  using  his  land  without  paying  him  for  it,  or  giving 
hira  a  credit  on  the  books,  would  not  show  such  intention,^ 
or  making  mere  temporary  improvements  on  land  held  in 
common  with  partners,  as  against  written  references  by  and 
between  the  partners  to  the  land  as  held  in  common.^  Or 
paying  incidentally  a  single  instalment  of  purchase  money 
out  of  partnership  funds  on  a  prior  contract  on  separate  ac- 
count gives  no  right  except  to  reimbursement.' 

§283.  taken  for  debt. —  Eeal  estate  taken  by  part- 
ners in  satisfaction  of  a  debt,  or  received  in  the  collection  of 
a,  claim,  or  purchased  on  foreclosure  of  a  mortgage  securing 
a  partnership  debt,  is  deemed  to  be  partnership  property, 
and  held  in  the  proportion  of  their  interest  in  the  firm,  in 
the  absence  of  evidence  showing  a  conversion  of  it  into  sepa- 
rate property.* 

§  284.  Books  sliow  intention. —  But  if  purchased  by  one 
partner  in  his  own  name,  with  partnership  funds,  and  a 
charge  against  him  is  made  on  the  ledger  for  its  reasonable 
value,  this  shows  a  conversion  into  individual  property;'  or 

Kendall  v.  Rider,  35  Barb.  100 ;  that  using  partnership  funds  in  im- 
Averill  r.  Loucks,  6  Barb.  19,  470;  proving  it  was  equivalent  merely 
King  V.  Wilcomb,  7  Barb.  263.  A  to  dividing  and  converting  so  much 
lease  by  one  partner  to  the  firm,  and  assets  into  separate  property.  And 
improvements  by  them,  makes  dis-  see  Deloney  v.  Hutcheson,  2  Rand, 
tinct  interests,  and  a  mortgage  by  the    ( Va. )  183,  187. 

lessor  would  not  cover  the  firm's  in-  ^  Putnam  v.  Dobbins,  38  111.394; 
terest.  Kerr  v.  Kingsbury,  39  Mich.  Moran  v.  Palmer,  13  Mich.  3G8;  Mor- 
150.  gan   V.    Olvey,  53   Ind.  6;   Paton   v. 

iBallantine  v.  Frelinghuysen,  Baker,  62  Iowa,  704;  Flanagan  v. 
supra;  Chamberlin  v.  Chamberlin,  Shuck,  82  Ky.  617;  Whitney  i\  Cot- 
12  J.  &  Sp.  (N.  Y.)  IIG.  ten,  53  Miss.  689 ;  Morrison y.  Menden- 

2Frink  v.  Branch,  16  Conn.  260;  hall,  18  Minn.  232;  Buchant?.  Sumner, 
Robertson  v.  Corsett,  39  Mich.  777.       2  Barb.  Ch.  165;  Leinsinringu.  Black, 

■nVheatley  v.  Calhoun,  12  Leigh  5  Watts,  303;  Collunab  u.  Read,  24  N. 
(Va.).  264  (37  Am.  Dec.  654).  In  Y.  505;  Smith  v.  Ramsey,  6  III.  373. 
Parker  v.  Bowles,  57  N.  H.  491,  it  5  Homer  v.  Homer,  107  Mass.  82; 
•was  held  that  property  not  purchased  Collumb  v.  Read,  24  N.  Y.  505,  511; 
with  partnership  funds,  and  there-  Faircliild  v.  Fairchild,  64  N.  Y.  471 
fore  held  as  tenants  in  common,  (aflf.  5  Hun,  407);  Bergeron  v.  Rich- 
could  not  be  turned  into  partnership  ardott,  55  Wis.  129;  Harvey  v. 
property    by  oral    agreement,    and    Pennypacker,  4  Del.  Ch.  445.     And 

279 


§  285.  CONDUCT  OF  THE  BUSINESS. 

if  being  owned  by  him  it  is  credited  to  him  on  the  books, 
this  shows  it  is  partnership  property;'  or  if  the  other  part- 
ner had  half  the  cost  charged  against  him  on  the  books.* 
If  bought  with  partnership  funds,  but  is  used  for  residences 
of  the  partners,  but  is  treated  as  partnership  property  on 
the  books,  it  will  be  so  regarded,  though  the  dwellings  were 
built  at  individual  expense,  but  the  property  was  undivided.^ 
If  bought  on  the  credit  of  the  firm,  with  funds  raised  by  its 
notes,  with  the  intention  of  using  it  for  the  firm's  business, 
which  was  never  done,  and  the  expense  of  discounting  the 
note  and  its  payment  and  the  taxes,  are  charged  against 
one  partner,  it  is  his  property,  the  credit  of  the  firm  being 
loaned  to  him  for  the  purpose,  and  profits  on  a  resale  are 
therefore  his.* 

If  the  deed  described  the  parties  as  partners  this  justifies 
the  inference  that  the  land  is  partnership  property.' 

§  285.  Use  of  fimtls  not  conclusive. —  The  mere  fact  that 
partnership  funds  have  gone  into  a  purchase  of  real  estate 
is  very  inconclusive  as  to  the  intention  of  the  partners,  for 
they  may  have  desired  to  make  an  investment  of  surplus 
funds.  It  might  be  supposed  that  in  the  absence  of  evi- 
dence of  intention  the  legal  estate  would  control,  and  the 
grantees  hold  as  tenants  in  common  and  not  as  partners; 
yet  this  cannot  be  safely  affirmed  in  view  of  the  authorities. 
All  the  circumstances  must  be  looked  to,  such  as  the  man- 
ner of  treating  the  purchase  on  the  books,  the  use  of  the 

see  Ex  parte  McKenna,  3  De  G.  F.  &  ooflfutt  v.  Scott,  47  Ala.  104,  126. 

J.  C59;  Smith  v.  Smith,  5  Ves.    189;  If  land    is    bought  with   the    joint 

Leinsinring  v.    Black,  5  Watts,  303.  funds,  in  the  name  of  one  partner, 

Contra,  if  the   books  show  no  light  who  afterwai'ds  died,  tlie  presenta- 

on   the  intention.     King  v.  Weeks,  tion  by  the  surviving  partner  of  a 

70  N.  Ca.  372.  claim   for  his  advances  in  the  pur- 

1  Robinson  v.  Ashton,  L.  R.  20  Eq.  chase  of  the  property  against  the 
25.  estate  of  the  decedent  does  not  estop 

2  Collins  V.  Charlestown  Mut.  F.  him  to  withdraw,  and  claim  the  prop- 
Ins.  Co.  10  Gray,  155.  erty  to  be  joint,  where  presentation 

3  Ex  parte  McKenna,  3  DeG.  F.  &  was  not  intended  as  an  abandonment 
J,  645.  of  it  as  such.     Way  v.   Stebbins,  47 

<  Hay's  Appeal,  91  Pa.  St.  265.  Mich.  269.,' 

280 


REAL  ESTATE.  §  286. 

property,  who  collected  the  rents,  paid  insurance  or  taxes; 
yet  none  of  these  are  alone  conclusive.' 

If  the  use  were  conclusive  of  the  question,  the  land  might 
be  real  estate  at  one  time  and  personalty  at  another.  The  use 
is  not  the  test,  but  is  only  evidence  of  the  intention  of  the 
parties,  which  is  the  test.^ 

If  such  purchase  was  within  the  usual  scope  of  the  part- 
nership business,  as  where  the  partnership  are  dealers  or 
speculators  in  land,  the  purchase  with  partnership  funds 
w^ould  no  doubt  be  deemed  as  partnership  property  unless 
the  contrary  were  shown. ^ 

§  286.  use  of  property  not  conclusive.— If  payment 

of  pui-chase  money  out  of  joint  fund  is  alone  weak  evidence 
of  intent  to  hold  the  property  as  joint,  the  mere  use  made 
of  property  is,  alone,  still  weaker.  Thus,  that  a  single  part- 
ner devotes  his  individual  property  to  the  business  does  not 
make  it  partnership  property.*    So,  if  the  property  belonged 

1  Phillips  V.  Phillips,  1  Myl.    &  K.  2  Holmes  u.  Self,  79  Ky.  297;Hatch- 

649;    Hanson    v.    Eustace,    2    How.  ett  v.  Blanton,  72  Ala.  421 ;  Sumner  u. 

653;Hanksu.Hinson,  4  Porter  (Ala.),  Hampson,  8  Oh.    828;  32  Am.  Dec. 

509;  Wood  v.  Montgomery,  60   Ala.  722;    Fall    River    Whaling      Co.   v. 

500;  Brewer  v.   Browne,  6S  id.    210;  Borden,    10    Cush.   458,  462-3.    That 

Hatchett   v.     Blanton,   72    id.   423;  the  method  of  charging  it  upon  the 

McGuire    v.   Ramsey,   9   Ark.    518;  books  will  control  the  use,  see  Ex 

Tillotson  V.  Tillotson,  34  Conn.  335 ;  parte  McKenna,  3  DeG.  F.  &  J.  615. 

Price  V.  Hicks,  14  Fla.  565;  Matlock  3  See  Johnson  v.    Clark,   18  Kan. 

V.  Matlock,  5Ind.  403;  Indiana  Pot-  157;  Converses.  Citizens'  Mut.  Ins. 

tery  Co.    v.  Bates,  14  id.    8;  Morgan  Co.  10  Cush.  37;  Sumner  v.   Hamp- 

V.  Olvey,  53  id.  6;  Buck  v.  Winn,  11  son,    8  Oh.  328;  32  Am.    Dec.    722; 

B.    Mon.  320;  Dyer  v.  Clark,  5  Met.  Wooldridge      v.    Wilkins,    3     How. 

562,  579;  39  Am.  Dec.  697;  Richards  (Miss.)   360;  Pugh  v.  Currie,  5  Ala. 

V.  Manson,     101   Mass.     482,   484-5;  446;    Allen  v.   Withrow,  110   U.   S. 

Smith  V.  Jackson,    2  Edw.    Ch.    28;  119,  130.     Declarations  of  the  part- 

Collumb  V.  Read,  24  N.  Y.  505,  511;  ners  that  land  is  partnership  pi-op- 

Tarbel  v.  Bradley,  7  Abb.  New  Cas.  erty  is  evidence  of  the  fact.     Rust  v. 

273;  Baird  v.  Baird,  1   Dev.    &  Bat.  Cliisholm,  57    Md.  376.     So  is   pay- 

(N.  Ca.)  Eq.  524;  King  v.  Weeks,  70  ment  of  mortgages    upon   it  from 

N.  Ca.  372;  Ross  v.  Henderson,  77  id.  partnership  funds,  and  this  may  be 

170;    Lefevre's   Appeal,   69    Pa.    St.  shown  without  producing  the  mort- 

122;  8  Am.    Rep.  229;  Providences,  gages.     Fairchild  v.  Fairchild,  64  N. 

Bullock,     14    R.    I.    353;    Gaines  v.  Y.  471,  480  (aff.  5  Hun,  407). 

Catron,  1  Humph.  (Tenn.)  514.  *  Burdon  v.  Barkus,  4  DeG.  F.  &  J. 

281 


§  2S7.  CONDUCT  OF  THE  BUSINESS. 

to  or  was  faniished  by  all  the  partners  as  tenants  in  com- 
mon, using  it  for  partnership  purposes,  as  carrying  on  the 
business  upon  it,  does  not  impress  upon  it  the  character  of 
partnership  property.^ 

Thus,  if  two  persons  are  tenants  in  common  of  a  colHery  and 
work  it  in  partnership,  this,  as  distinguished  from  acquiring  it  for 
such  purpose,  does  not  make  it  partnership  property.* 

In  Gordon  v.  Gordon,  49  Mich.  501,  two  of  three  partners  in 
farming  owned  the  farm,  and  the  articles  of  partuersliip  gave  the 
third  partner  a  right  to  a  conveyance  of  one-third  of  the  farm  on 
payment  of  one-third  of  the  cost;  and  it  was  held  that  the  farm  was 
not  partnership  property  before  such  payment,  and  hence  the  lien 
of  a  mortgagee  of  the  share  of  one  was  good  against  the  claim  of 
the  other  partners  for  advances,  and  that,  in  a  suit  for  an  account- 
ing between  the  partners,  the  land  could  not  be  considered. 

In  Deloney  v.  Hutcheson,  2  Rand.  183,  an  allegation  that  partners 
bought  land  on  which  their  store  was  situated  and  held  it  as  joint 
stock,  but  not  averring  that  it  was  bought  with  partnership  funds, 
was  held  consistent  with  payment  by  each  of  his  proportion  out  of 
his  separate  funds,  and  was  not,  therefore,  sufficient. 

Taking  insurance  in  the  firm  name  is  evidence,  but  not  con- 
clusive.* Payment  of  taxes  by  the  firm,  and  charging  them  to  the 
individual  account  of  the  partner  who  owned  the  land,  is  of  course 
evidence.'* 

§  287.  Co-owners  going  into  business  on  their  land. —  But 

if  two  co-owners  of  land  subsequently  go  into  partnership 

42;  Waithman  u.  Miles,  1  Stark.  181;  2  Crawshay  r.    Maule,    1    Swanst. 

Colnaghi    v.  Black,  8  C.   &  P.  464;  495,518,  523. 

Rapier  v.  Gulf  City  Paper  Co.  64  Ala.  3  Hogle  v.  Lowe,  12  Nev.  286, 

330 ;  Goopper  v.  Kinsinger,  89  Oli.  St.  ■*  Goepper  v.  Kinsinger,  39  Oh.  St. 

429;   Chambtrlin  v.  Chaaiberlin,   12  429,443.     And  see  Hay's  Appeal,  91 

J.  &  Sp.  (N.  Y.)  116.  Pa.  St.  265.     Statements  of  some  of 

1  "Ware  y.  Owens,  42  Ala.  412;  Grif-  the  partners  that  it  is  partnership 

fie  V.  Maxey,  58  Tex.  210;  Theriot  v.  property  were  admitted  in  Winslow 

Michel,  28  La.  Ann.  107;  Reynolds  r.  r.  Chiffelle,  Harp.  (S.  C;i.)  Eq.  25.  but 

Ruckman.    35   Mich.  80;   Gordon  v.  held  to  be  mere   opinion,  especiall}- 

Gordon,  49  id.  501;  Hogle  v.  Lowe,  12  where  another,   by  mortgaging  his 

Nev.   280;  Deloney  v.  Hutcheson,  2  share,  has  treated   it  otherwise,  in 

Rand.  (Va.)  183;  Moody  v.  Rathburn,  Hogle  v.  Lowe,  12  Nev.  286. 
7  Minn.  89. 

282 


REAL  ESTATE.  §  287. 

in  a  business  carried  on  upon  the  land,  this  is  not  sufficient 
to  make  them  partners  as  to  the  real  estate. 

Thus,  where  two  bought  land  jointly,  and  one,  with  the  other's 
consent,  put  a  building  upon  it,  tlie  fact  that  they  became  partners 
in  carr\'ing  on  a  boarding-house  therein  will  not  prevent  one  from 
suing  the  other  for  half  the  cost  of  the  land  and  house.' 

Where  A.  sold  to  B.  and  C.  thenndivided  two-thirds  of  real  estate 
owri<'d  by  him,  under  agreement  to  go  into  partnership  Avith  them 
in  a  livery -stable  and  saw-mill  business  upon  the  land,  and  the  part- 
nership was  formed,  this  is  not  of  itself  sufficient  to  convert  the 
land  into  stock;  hence  it  can  be  partitioned  before  the  partnership 
is  wound  up.^ 

Two  owners  of  a  still-house  were  partners  in  the  business  carried 
on  therein;  this  is  not  sufficient  to  show  a  partnership  in  the  prop- 
erty; hence,  if  they  sold  it  and  one  receives  all  the  purchase  money, 
tlie  other  can  sue  him  at  law  for  his  share.* 

In  Wheatley  v.  Colhoun,  12  Leigh  (Va.),  264  (37  Am.  Dec.  654), 
it  was  said  that  real  estate  of  milling,  mining  or  farming  partner- 
ships is  not  deemed  part  of  the  stock,  unless  the  intent  is  distinctly 
manifested;  hence  the  widow  of  one  of  a  milling  partnership  was 
held  dowable  in  his  moiety.^ 

If  a  person  carrying  on  a  business  by  himself  upon  his 
own  land  devises  the  land  to  his  children,  together  with  his 
business,  which  they  continue,  the  land  may  or  may  not  be 
partnership  property.  If  the  land  is  "substantially  in- 
volved "  in  the  business,  as  it  is  where  a  nurseryman  devises 
the  land  and  business  to  this  children,  who  continue,  it  is 
partnership  property. ^  Yet  even  where  the  land  so  devised 
is  held  as  tenants  in  common  and  not  as  partnership  prop- 
erty, new  land  purchased  with  the  profits  or  earnings  of  the 
firm  is  partnership  property.^  In  fact,  whatever  is  purchased 
with  the  funds  or  profits  of  a  business  is  presumptively  part- 

iSikesu.  Work,  6  Gray,  433.  in  partnersliip  are  not  partners  in 

2  Alexander  v.   Kiuibro,   49   Miss,  the  land.     Pecot  v.  Armelin,  21  La. 

529.  Ann.  6G7. 

'Coles  V.  Coles,  15  Johns.  159;   8       &  Waterer  u  Waterer,  L.  R.  15  Eq. 

Am.  Dec.  231.  402,  per  James.  L.  J. 

•*  Heirs  bu.ying  lands  at  a  sale  of       «  But  see  Stewards.  Blake  way,  L. 

the  estate  and  subsequently  planting  R.  4  Ch.  App.  603. 

283 


§  289.  CONDUCT  OF  THE  BUSINESS. 

nership  property,  although  in  the  name  of  one  partner, 
whether  it  be  lancP  or  even  other  property,  as  raih'oad  stock, 
if  bought  on  account  of  the  firm,  though  without  authority.'^ 

§  288.  Incoming  partners. —  Where  three  partners  owning 
land  took  in  a  fourth  partner,  and  thereupon  deeded  the  hind  to  the 
four,  the  court  said  that  whether  a  deed  in  wliich  the  grantors 
were  also  grantees  changed  the  character  of  the  property  it  oper- 
ated as  a  grant  of  an  undivided  one-quarter  from  each  to  the  new 
partner.' 

Where  a  firm  of  two  partners,  owning  land  in  which  the  husi- 
ness  was  carried  on  as  partnership  property,  took  in  a  new  partner 
and  the  new  firm  paid  rent  to  the  two  original  partners,  the  prop- 
erty thereupon  ceased  to  be  partnership  property  and  became  real 
estate.*  If  the  new  firm,  composed  of  the  original  partners  with  a 
new  partner,  simply  use  the  property,  it  does  not  become  the  prop- 
erty of  the  new  firm,  not  having  been  paid  for  by  their  funds.^ 
But  if  it  was  put  into  the  new  firm  as  part  of  the  capital  contrib- 
uted by  the  original  partners,  it  becomes  partnership  property  of 
the  new  firm.* 

If  partnership  real  estate  is  sold  the  presumption  is  that  the 
purchase  money  has  gone  to  the  use  of  the  firm;  hence,  a  mort- 
gage back  to  secure  the  purchase  money  is  partnership  property.'' 
And  if  such  real  estate  is  in  the  name  of  one  of  three  partners,  and 
upon  dissolution  he  conveys  to  another  partner  the  part  represent- 
ing his  interest,  this  will  be  deemed  a  conversion  of  the  whole  into 
separate  property  and  not  of  an  undivided  part  only;  hence  he 
holds  the  rest  for  himself  and  part  for  the  third  partner  as  tenants 
in  common  of  the  equitable  title.* 

§  289.  Pennsylvania  rule. —  In  Pennsylvania,  the  usual  rules 
as  to  the  conversion  of  real  estate  of  a  partnership  into  personalt}'' 

1  Ex  parte  McKenna,  3  DeG.  F.  &  56  Am.  Dec.  253 ;  Bergeron  v.  Rich- 

J.    645;   Meiot  v.  Burnand,  4  Russ.  ardott,  55  Wis.  129;  Marsh  v.  Davis, 

247;  2  Bli.  N.  S.  215.  33  Kan.    326.     And  the   statute    of 

^  Ex  parte  Hinds,  3  DeG.  &  Sni.  frauds  does  not  apply  whether   the 

G13 ;  and  supra,  %  261.  real  estate  was  put  into  the  new  firm 

3McFarland  v.  Chase,  7  Gray,  462;  at  its  formation  or  subsequently  pur- 

Buch  a  deed  is  perfectly  good  Henry,  chased,  the  title  being  in  the  names 

V.  Anderson,  77  Ind.  361.  of   the  original  partners.     Marsh  v, 

*  Rowley  V.  Adams,  8  Jur.  994.  Davis,  33  Kan.  326. 

sHatchett  v.  Blanton,  72  Ala.  423.  7  Lincoln  v.  White,  30  Me.  291. 

6  Andrews   v.  Brown,   21  Ala.  437;  8  Smith  v.  Ramsey,  6  111.  373. 

284 


REAL  ESTATE.  §  290. 

apply  as  between  the  partners,  but  as  to  strangers  the  evidence  or 
fact  of  such  conversion  must  appear  in  writing  and  be  recorded, 
otherwise  they  are  not  bound  by  it;  hence  a  judgment  against  one 
partner,  or  a  mortgage  by  him  on  his  undivided  share,  in  the  ab- 
sence of  such  record  is  a  lien  on  his  moiety,  superior  to  the  equi- 
ties of  his  copartners  or  the  priority  of  partnership  creditors  on 
distribution.  The  cases  in  Pennsylvania  are  very  numerous;  the 
following  are  but  a  part  of  them.* 

§  2  90.  Consequences  of  conversion  —  Heirship  —  Dower. — 

To  the  extent  in  which  real  estate  is  converted  into  partner- 
ship stock,  all  the  incidents  attach  to  it  which  belong  to  any 
other  stock,  in  so  far  as  is  consistent  with  the  technical  rules 
of  conveyancing;  for  example,  each  partner  has  a  lien  upon 
the  real  estate,  not  only  for  the  payment  of  creditors,  but 
also  for  advances  made  by  him,  and  for  his  share  of  surplus 
on  winding  up,  prior  to  all  claim  of  separate  creditors,  or 
incumbrancers  of  other  partners,  the  same  as  in  case  of  per- 
sonal property.^ 

If  the  partner  dies  there  can  be  no  dower,  or  inheritance, 

iShafer's  Appeal,    106  Pa.  St.  49;  83;  Pennypackeru  Leary,  65  id.  220 ; 

Kepler  u.  Erie  Dime  Sav.  &  Loan  Co.  Thrall  v.  Crampton,  9  Ben.    218;   16 

101    id.    602;  Du  Bree  v.  Albert,  100  Baukr.  Reg.  261;  Duryea  v.  Burt,  28 

id.   483;  Holt's  Appeal,  98  id.    257;  Cal.  569;  Divine  v.   Mitchum,   4  B. 

Black's  Appeal,  89   id.  201 ;  Geddes'  Men.  488  (41  Am.  Dec.  241) ;  Hewitt 

Appeal,  84  id.  482;  Appeal  of  Second  v.  Sturdevant,  11  id.  458,  459;  Bryant 

Nat'l  Bk.  83  id.  203;  Foster  u  Barnes,  v.  Hunter,  6  Bush,  75;  Spalding  v. 

Slid.  377;  Foster's  Appeal,  74  id.  391;  Wilson,    80  Ky.    589;     Burleigh    v. 

15  Am.  Rep.  553;  3   Am.   Law  Rec.  White,  70   Me.  130;  Dyer  v.  Clark,  5 

230;Meilyr.  Wood,    71   id.    488;  10  Met.  562;  39  Am.  Dec.  697;  Howard  w. 

Am.  Rep.  719;  Jones'  Appeal,  70  id.  Priest,  5  id.  582;  Fall  River  Whaliug 

169;     Ebbert's    Appeal,    70    id.    79;  Co.  v.  Borden,  10  Cush.  458,  461 ;  Ar- 

Lefevre's  Appeal,  69  id.  122;  8  Am.  nold  v.  Wainwright,    6  Minn.  358; 

Rep.  229;  McDermot  v.  Laurence,  7  Dil worth  v.  Mayfield,  36  Miss.   40; 

S.  &  R.  438;  10  Am.  Dec.  468;  Hale  Whitney  v.  Gotten,  53  id.  689;  Priest 

V.  Henrie,  3  Watts,  143;  27  Am.  Dec.  v.  Chouteau,  85  Mo,  398;  Hiscock  v. 

289.  Phelps,  49  N.  Y.  97;  Tarbel  v.  Brad- 

^  This  is  sufficiently  obvious  from  ley,  7  Abb.   New  Cas.  273;  Menden- 

the  rest  of  this   chapter;  neverthe-  hall  v.  Benbow,  84  N.  Ca.  646;  Beyers 

less,  it  was  specifically  ruled  in  these  v.   Elliott,  7  Humph.  204;  Williams 

cases.    Taylor  v.  Farmer  (111.),  4  N.  v.  Love,  2  Head,  80;  Jones  v.  Jones, 

E.  Rep.  370;  Roberts  v.    McCarty,  9  9  Lea,  627;  Diggs  v.  Brown,  78  Va. 

Ind.  16;  Evans  v.  Hawley,  35  Iowa,  292. 

285 


g  200. 


CONDUCT  OF  THE  BUSINESS. 


or  distributive  share  claimed;  the  real  estate  or  its  proceeds 
until  creditors  are  paid  and  copartners'  claims  adjusted,  and 
dispositions  of  partnership  real  estate,  whether  before  or 
after  the  death  of  a  partner,  are  free  from  any  incumbrance 
of  inchoate  dower,  whether  the  sale  be  by  the  act  of  the 
partners,  or  on  foreclosure,  or  under  execution,  or  by  an 
assignee  in  insolvency,  or  a  receiver  in  winding  up,  or  by 
a  surviving  partner.  And  whether  the  title  be  in  all  the 
partners  or  some  of  them,  or  solely  in  the  husband  of  the 
claimant,  is  wholly  immaterial.'  If,  under  the  jurisprudence 
of  any  state,  dower  is  a  legal,  and  not  an  equitable,  estate, 
so  that  a  legal  title  would  devolve  upon  the  widow,  she  would 
hold  such  title  in  trust  for  the  purposes  of  the  partnership. 


1  Andrews  v.  Brown,  21  Ala.  437, 
442;  56  Am.  Dec,  252;  Loubat  v. 
Nourse,  5  Fla.  350;  Price  v.  Ilicks, 

14  id.  565 ;  Bopp  v.  Fox,  63  111.  540 ; 
Simpson  v.  Leech,  86  111.  286;  Trow- 
bridge u.  Cross,  117  id.  109;  Matlock 
V.  Matlock,  5  Ind.  403;  Hale  v. 
Plummer,  6  id.  121;  Huston  v.  Neil, 
41  id.  504;  Grissom  v.  Moore,  106 
Ind.  296;  Paige  v.  Paige  (Iowa),  32 
N.  W.  Rep.  3G0 ;  Galbraith  v.  Gedge, 
16  B.  Mon.  630 ;  Goodburn  v.  Stevens, 
1  Md.  Ch,  420 ;  Dyer  v.  Clark,  5  Met. 
.562;  39  Am.  Dec.  697;  Burnside  v. 
Merrick,  4  id.  537,  544;  Wooldridge 
V.  Wilkins,  3  How.  (Miss.)  360;  Rob- 
ershaw  v.  Hanway,  52  Miss.  713; 
Collins  r.  Warren,  29  Mo.  236;  AVil- 
let  V.  Brown,  65  id.  138;  27  Am, 
Rep.  265 ;  Uhler  v.  Semple,  20  N.  J. 
Eq.  288;  Stroud  v.  Stroud,  Phil.  (N. 
Ca.)  L.  525;  Greene  v.  Greene,  1  Oh. 
535;  13  Am.  Dec.  642;  Sumner  v. 
Hampson,  8  id.  328;  32  Am.  Dec. 
722;  Foster's  Appeal,  74  Pa,  St.  391 ; 

15  Am.  Hep.  553;  3  Am.  Law  Rec. 
230;  Richardson  v.  Wyatt,  2  Desaus. 
(S.  Ca.)471;  Williamson  v.  Fontain, 
7  Baxter,  212;  Martin  v.  Smith,  25 
W.  Va.  579 ;  In  re  Ransom,  17  Fed. 


Rep,  331;  Conger  v.  Piatt,  25  Up, 
Can.  Q.  B.  277 ;  Wylie  v.  Wylie,  4 
Grant's  Ch.  (Up.  Can.)  278;  Sanborn 
V.  Sanborn,  11  id.  359.  Hence  the 
wife  of  a  partner  need  not  join  in  a 
mortgage  made  by  the  firm,  and  is 
not  a  necessary  party  to  its  fore- 
closure. Huston  V.  Neil,  41  Ind,  504, 
But  in  a  suit  in  which  the  question 
of  whether  land  is  partnersliip  prop- 
erty or  not  is  to  be  decided,  a  wife 
of  one  of  the  partners,  claiming  the 
property  as  homestead,  is  a  neces- 
sary party.  Rhodes  v.  Williams,  12 
Nev,  20.  The  subsequent  taking  in 
of  a  partner  by  a  man  owning  land, 
and  conveying  the  property  to  the 
firm,  does  not  divest  inchoate  dower, 
and  if  she  join  in  conveying  half  to 
the  other  partner,  her  inchoate 
dower  in  the  other  half  remains. 
Grissom  v.  Moore,  106  Ind,  296,  But 
as  to  laud  which  is  partnersliip  prop- 
erty for  the  purposes  of  the  partner- 
ship, a  subsequent  out  and  out  con- 
version of  it  into  personalty  does 
not  need  the  consent  of  the  wife. 
West  Hickory  Min.  Ass'n  v.  Reed, 
80  Pa.  St.  38,  50, 


286 


REAL  ESTATE. 


§291. 


§291. 


sales  and  incumbrances  of  share. —  Hence, 


where  one  partner  for  his  own  benefit,  and  under  the  appear- 
ance of  being  tenant  in  common,  sells  or  mortgages  an  un- 
divided share  in  the  property,  or,  if  he  has  the  whole  title,  he 
or  his  heirs  sell  or  mortgage  the  whole,  the  vendee  or  mort- 
gagee, unless  he  can  claim  as  a  bona  fide  buyer  without 
notice  that  it  is  partnership  property,  can  only  obtain  the 
partner's  interest,  which  is  his  proportion  in  the  surplus 
after  payment  of  all  debts,  both  prior  and  subsequent,  in- 
cluding tlie  claims  of  the  other  partners;  ^  but  if  he  is  such 
bona  fide  buyer  without  notice  he  is  protected.'' 


1  §§  180,  185. 

2  Cavander  v.  Bulteel,  L.  R.  9  Ch. 
App.  79;  Hoxie  v.  Carr,  1  Sumner, 
C.  C.  173;  Frinkv.  Branch,  16  Conn. 
260;  Sigourney  v.  Munn,  7  Conn. 
324;  Dupuy  v.  Leavenworth,  17  Cal. 
263;  Duryea  v.  Burt,  28  id.  569; 
McNeil  V.  Congregational  Soc.  66  id. 
105;  Reeves  v.  Ayers,  38  111.  418; 
Whitney  v.  Gotten,  53  Miss.  689; 
Divine  v.  Mitchum,  4  B.  Mon.  488 
(41  Am.  Dec.  241);  Churchill  v.  Proc- 
tor, 31  Minn.  129;  Buck  v.  Winn,  11 
B.  Mon.  320;  Flanagan  v.  Shuck,  82 
Ky.  617;  Arnold  v.  Wainwright,  6 
Minn.  358;  Priest  v.  Chouteau,  85 
Mo.  398;  13  Mo.  App.  253;  Crow  v. 
Drace,  61  Mo.  225 ;  Cowden  v.  Cairns, 
28  id.  471;  Hogle  v.  Lowe,  12  Nev. 
286;  Messer  v.  Messer,  59  N.  H.  375 ; 
Matlackv.  James,  13  N.  J.  Eq.  126; 
Van  Brunt  v.  Applegate,  44  N.  Y. 
544;  Hiscock  v.  Phelps,  49  N.  Y.  97 
(below,  2  Lans.  106);  Tarbel  v.  Brad- 
ley, 7  Abb.  New  Cas.  273;  Ross  v. 
Henderson,  77  N.  Ca.  170;  Miller  v. 
Proctor,  20  Oh.  St.  443,  448 ;  Bank  v. 
Sawyer,  38  Oh.  St.  389 ;  Tillinghast 
V.  Champlin,  4  R.  I.  173;  Boyersu. 
Elliott,  7  Humph.  204;  Fowler  v. 
Bailley,  14  Wis.  125;  Bergeron  v. 
Richardott,  55  id.  129;  Mason  v.  Par- 


ker, 16  Grant's  Ch.  (Up.  Can.)  230. 
In  Cottle  V.  Harrold,  73  Ga.  830,  a 
mortgage  by  four  out  of  five  part- 
ners was  held  to  convey  the  tii4e  -«f 
the  four;  but  this  is  not  consistent 
with  the  above.  It  seems  to  have 
been  thought  in  Hogle  v.  Lowe,  12 
Nev.  286,  that  a  mortgagee  of  one 
partner  with  notice  took  subject 
only  to  existing  and  not  to  subse- 
quent partnership  debts.  This  is  not 
elsewhere  the  law.  See  §  185.  In 
Van  Brunt  v.  Applegate,  44  N.  Y. 
544,  it  was  held  that  a  conveyance 
of  his  moiety  by  one  partner,  in  pay- 
ment of  a  partnership  debt,  vested  a 
good  title  to  the  moiety  in  the 
grantee,  and  that  the  grantee  did 
not  become  a  trustee  for  the  firm. 
Two  judges  dissented,  and  the  case 
is  perhaps  doubted,  in  Staats  v. 
Bristow,  73  N.  Y.  264.  And  so  if  one 
holds  the  entire  title,  a  mortgage  by 
him,  the  proceeds  of  which  went  to 
pay  partnership  debts,  was  deemed 
authorized  by  all,  from  their  having 
allowed  the  title  to  remain  in  him 
alone.  Cliittenden  v.  German  Amer. 
Bk.  27  Minn.  143.  Where  the  title 
of  real  estate  of  W.,  B.  and  C.  was 
in  W.,  B.'s  mortgage  of  his  interest 
is  not  an  incumbrance  as  against  a 


287 


§  292.  CONDUCT  OF  THE  BUSINESS. 

Such  incumbrauce  imposes  no  actual  lien  upon  the  prop- 
erty, as  against  a  subsequent  buyer  of  the  interest  of  the 
entire  firm  for  partnersliip  purposes,  whether  before  or  after 
dissolution;^  though  it  may  be  enforced  as  a  priority  upon 
the  debtor's  surplus,  if  any  is  left  for  him. 

Thus  a  judgment  against  one  partner  for  his  individual  debt  is, 
after  all  creditors  are  paid,  and  it  only  remains  to  make  settlement 
between  the  partners,  a  lien  to  the  extent  of  his  surplus  in  land,  so 
that  a  subsequent  mortgage  by  him  on  his  share  is  postponed  to  it.' 

The  doctrines  which  apply  to  the  levy  of  an  execution  on 
the  interest  of  a  single  party,  at  the  suit  of  his  individual 
creditor,  apply  to  a  levy  by  such  creditor  on  the  real  estate, 
whether  the  title  be  in  the  debtor  alone  or  in  common.' 

§  292.  The  legal  title  —  Conveyances  of  it. —  Real  estate 
converted  into  personalty  is  so  only  in  equity  and  not  in 
law,  and  a  conveyance  or  mortgage,  if  in  a  court  of  law,  is 
neither  a  transfer  of  personalty  nor  a  chattel  mortgage,  but 
is  governed  by  the  statutes  applicable  to  conveyancing  of  real 
estate.*  And  so  a  judgment  against  the  firm  is  a  lien  upon 
real  estate  held  in  the  names  of  the  partners.^ 

corporation  into  which  the  firm  was  Ensign  v.  Briggs,  6  Gray,  329;  Col- 
turned,  the  members  receiving  stocli  lins  u.  Warren,  29  Mo.  236;  Blake  u. 
for  their  shares,  Tarbell  v.  West,  86  Nutter,  19  Me.  16:  Cowden  r.  Cairns, 
N.  Y.  280.     In  Jones  v.  Neale,  2  Patt.  28  Mo.  471 ;  Lang  v.  Waring,  17  Ala, 

6  H.  (Va.)  339,  a  conveyance  by  one  145;  s,  C.  25  id.  625;  Caldwell  v. 
partner  of  real  estate  in  trust,  to  se-  Parmer,  56  id.  405.  As  to  judgment 
cure  a  partnership  creditor,  was  held  liens,  see  Foster  v.  Barnes,  81  Pa.  St. 
to  pass  good  title  to  an  undivided  377;  Lauffer  u  Cavett,  87  Pa,  St.  479 ; 
moiety,  both  in  law  and  equity,  giv-  Stadler  v.  Allen,  44  Iowa,  198;  and 
ing  the  creditor  priority  over  other  Bank  of  Louisville  v.  Hall,  8  Bush, 
joint  creditors.  Contra,  had  it  been  672.  See,  also,  Averill  v.  Loucks,  6 
to  secure  a  private  creditor.  Barb.  19,  470. 

iSeeg  186  and  Tarbel  v.  Bradley,  4  Lawrence  v.   Taylor,  5  Hill,  107; 

7  Abb.  NewCas.  273;  Bank  v.  Saw-  Miller  v.  Proctor,  20  Oh.  St,  442, 448 ; 
yer,  38  Oh,  St,  338.  But  see  Tread-  Piatt  v.  Oliver,  3  McLean,  37  (aff'd 
well  V.  Williams,  9  Bosw.  649.  on    other    grounds,    3    How,    333); 

2  Hewitt  V.   Rankin,  41    Iowa,  35;  Moreau  v,  Saffarans,  3  Sneed,  595. 
Johnson  v.  Rogers,  15  Bank,   Reg,  1,  ^  Re  Codding,  9  Fed.  Rep.  849,  And 

3  Page  V.   Thomas,    43  Oh.  St.  38;  see  Overholt's  Appeal,  12  Pa.  St,  222; 
Bryant     v.     Hunter,    6     Bush,    75;  Erwin's  Appeal,  39  id.  535, 
McCauley  v.    Fulton,    44    Cal,   355; 

288 


REAL  ESTATK  g  292. 

Wliere  an  individual  partner  conveys  the  property,  using 
the  names  of  all  in  a  proper  legal  instrument  which  pur- 
ports to  be  the  act  of  each,  the  instrument  satisfies  the  law, 
leaving  only  the  question  of  his  authority  open,  and  such 
authority,  even  where  seals  are  necessary,  may  be  granted 
by  parol  or  ratified  by  subsequent  parol  assent,  and  both 
authority  and  assent  may  be  implied  from  circumstances. 
This  has  been  more  fully  shown  in  treating  of  the  power  to 
seal.^  The  cases  referring  to  real  estate  alone  are  those  in 
the  note.  2 

In  Saga  v.  Shennan,  2  N.  Y.  417,  432,  Strong,  J.,  says:  "I  see 
no  reason  why  a  valid  general  power  for  each  to  execute  deeds  as 
attorney  for  the  others  might  not  be  inserted  in  the  articles  of 
partnership.  The  trust  would  not  be  greater  nor  more  hable  to 
ibuse  than  that  which  now  exists  in  relation  to  the  disposition  of 
personal  property."  Such  a  power  may  undoubtedly  be  so  granted, 
but  the  objection  to  granting  it  is  that  the  grant  of  power  ought 
to  appear  of  record  for  the  protection  of  the  grantee. 

In  Morrison  v.  Mendenhall,  18  Minn.  232,  the  articles  of  a  part- 
nership formed  to  loan  money  and  buy  and  sell  real  estate  pro- 
vided that  the  business  was  to  be  transacted  by  S.,  one  of  the 
partners,  and  this  was  held  sufficient  to  authorize  S.  to  assign  the 
mortgage  made  to  the  partners,  which  act  requires  a  seal  in  that 
state.  None  of  the  partners,  however,  were  contesting  the  act; 
the  ruling  related  to  the  assignee's  title  in  a  foreclosure  suit. 

In  Napier  v.  Catron,  2  Humph.  534,  536,  it  was  queried  whether 
a  grant  of  power  to  bind  the  firm  by  deed  was  authority  as  to  land 
owned  as  tenants  in  common  before  the  partnership  was  formed. 

1  §§  416,  417.  of  a  sealed  agreement  to  sell  signed 

2  Lawrence  V.  Taylor,  5  Hill,  107;  by  one  with  assent  of  all.  Moran  v. 
Smith  V.  Kerr,  3  N.  Y.  144;  Hoi-  Palmer,  13  Mich.  368,  where  the 
brook  V.  Chamberlin,  116  Mass.  155,  partner  conveyed  in  his  own  name 
and  cases  cited;  Haynes  v.  Sea-  alone,  but  put  the  proceeds  into  the 
chrest,  13  Iowa,  455 ;  Herbert  v.  Han-  fiim.  But  an  acknowledgment  by 
rick,  16  Ala.  581 ;  Grady  v.  Robinson,  one  for  both  before  a  notary  is  void, 
28  id.  289;  Gunter  v.  Williams,  40  Lenimon  v.  Hutchins,  1  Ohio  C.  C. 
id.  561 ;  Peine  v.  Weber,  47  111.  41 ;  388,  891.  But  see  Wilson  v.  Hunter, 
Stroman  v.  Varn,  19  S.  Ca.  307.  And  14  Wis.  683. 

see  Darst  v.  Roth,  4  Wash.  C.  C.  471, 

Vol.  I  — 19  289 


§  294.  CONDUCT  OF  THE  BUSINESS. 

This  depends,  of  course,  on  whether  it  was  made  partnership  prop- 
erty. 

§293.  same  in  case  of  death.— Although  partner- 
ship real  estate  is  devoted  to  pay  debts,  including  the  claims 
of  creditor  partners,  and  is  considered  personalty  for  that 
purpose,  the  devolution  of  the  title  in  case  of  death  is  gov- 
erned by  the  legal  rules  applicable  to  real  estate,  and  if 
wholly  or  partly  in  one  partner  descends  p>'0  tanto  upon  his 
heirs  in  trust  for  the  settlement  of  the  partnership.  In 
other  words,  the  jus  accresce?^c?^  applicable  to  personal  estate 
does  not  apply  to  the  legal  title  of  realty  to  place  the  title 
in  the  surviving  partner.^ 

§  294.  surviving    partner    aided    by   equity. —  The 

surviving  partner,  therefore,  in  exercising  his  right  to  sell 
the  property  in  order  to  wind  up  the  concern  and  pay  the 
debts,  though  he  can  convey  only  his  own  interest  in  the 
legal  title,  can  sell  the  entire  beneficial  interest,  and  a  court 
of  equity,  at  the  suit  of  the  grantee,  will  compel  the  widow 
and  heirs  to  convey  their  legal  title  to  him.'^ 

1  See,  for  example,  Pugh  v.  Currie,  an  action  to  recover  damages  as 
5  Ala.  446;  Andrews  v.  Brown,  21  against  a  railroad  for  the  value  of 
id.  437  (56  Am.  Dec.  253);  Caldwell  partnership  land  upon  which  the 
V.  Parmer,  56  id.  405 ;  Abernathy  v.  road  is  located  must  be  brought  in 
Moses,  73  id.  381 ;  Percifull  v.  Piatt,  the  name  of  the  heirs  and  surviving 
36  Ark.  456;  McNeil  v.  Congrega-  partner  jointly  if  the  legal  title  is  in 
tional  Soc.  66  Cal.  105;  Loubat  v.  them  jointly.  Whitman  v.  Boston 
Nourse,  5  Fla.  350;  Price  v.  Hicks,  &  Maine  R.  R.  3  Allen,  133.  So  of 
14  id.  565 ;  Cobble  v.  Tomlinson,  50  ejectment ;  the  holders  of  the  legal 
Ind.  550;  Galbraith  V.  Gedge,  16  B.  title,  and  not  the  surviving  partner 
Hon.  630 ;  Buffum  v.  Buff um,  49  as  such,  can  maintain  it.  Percifull 
Me.  108;  Dyer  v.  Clark,  5  Met.  562  v.  Piatt,  36  Ark.  456. 
(39  Am.  Dec.  697) :  Howard  r.  Priest,  2  Shanks  v.  Klein,  104  U.  S.  18; 
id.  582;  Whitman  v.  Boston  &  Me.  Burnside  v.  Merrick,  4  Met.  537; 
R.  R.  3  Allen,  133;  Merritt  v.  Dickey,  Dyer  v.  Clark,  5  Met.  563;  Howard  v. 
38  Mich.  41;  Dilworth  v.  Mayfield,  Priest,  5  Met.  583;  KeiCh  v.  Keith, 
36  Miss.  40;  Whitney  v.  Cotten,  53  143  Mass.  262;  Tillinghast  u.  Champ- 
id.  689;  Buchan  v.  Sumner,  2  Barb,  lin,  4  R.  I.  173;  Pugh  v.  Currie,  5 
Ch.  165;  King  v.  Weeks,  70  N.  Ca.  Ala.  446;  Andrews  v.  Brown,  21  id. 
372;  Pierce  r.  Trigg,  10  Leigh  (Va.),  437;  56  Am.  Dec.  252;  Murphy  v. 
406,  and  cases  under  §  390.     Hence,    Abrams,  50  id.  293;  Dupuy  v.  Leav- 

290 


REAL  ESTATE.  §  294. 

Unless  tlie  price  was  grossly  inadequate  and  there  was  probably 
some  collusion/  or  the  sale  was  not  made  for  the  purpose  of  wind- 
ing up,  nor  as  surviving  partner;*  and  the  decree  need  not  give  the 
minor  heirs  a  day  after  coming  of  age  to  show  cause  against  the 
decree.* 

If  the  partners  only  have  an  equity  and  not  a  legal  title,  pro- 
ceedings to  subject  it  need  only  be  against  the  surviving  partner.* 

Where  a  surviving  partner,  with  the  consent  of  the  administra- 
trix, continued  the  business  and  invested  partnership  funds  iti  real 
estate,  and  afterwards  took  in  the  minor  heirs  as  partners,  and  later 
the  partnership  was  converted  into  a  corporation,  and  stock  was 
given  the  minor  heirs  represented  by  their  guardians  for  their  in- 
terest, and  the  corporation  became  insolvent  and  assigned  for  ben- 
efit of  creditors,  the  assignee  was  held  entitled  to  obtain  a  decree 
releasing  the  title  of  the  minor  heirs  in  the  real  estate,  it  being 
personal  property,  for  payment  of  debts.' 

So,  in  case  of  death,  the  surviving  partner  was  held  entitled  to  a 
similar  decree,*  and  so  was  an  execution  creditor.^ 

enworth,   17  Cal.    263;   Galbraith  v.  '^McCaskill  v.    Lancashire,   83   N. 

Gedge,  16  B.  Mon.  630;  Dilworth  v.  Ca.  393. 

Mayfield,  S6  Miss.   40;   Whitney  v.  ssprague    Mfg.    Co.   v.    Hoyt,   29 

Gotten,  53  id.  689 ;  Matthews  v.  Hun-  Fed.  Ri  p.  421 ;  Francklyn  v.  Sprague, 

ter,   67    Mo.   293;  Easton  v.  Court-  121  U.  S.  215. 

Wright,  84  id.  27 ;  Griffey  v.  North-  6  Gray  v.  Palmer,  9  Cal.  616.     And 

cutt,  5  Heisk.  746;   Pierce  v.  Trigg,  see  Han  way  u.  Robertshaw,  4!)  Miss. 

10  Leigh  (Va.),  406;  Conger  v.  Piatt,  758.     In  Gray  v.  Palmer,  9  Cal.  616, 

25  Up.  Can.  Q.  B.  277.  it  seems  that  the  surviving  partner 

1  Lang  V.  Waring,  25  Ala.  625 ;  60  was  allowed  to  file  a  bill  against  the 
Am.  Dec.  533.  administrator  and  heirs  to  get  pos- 

2  McNeil  r.  Congregational  Soc.  66  session  of  real  estate  held  in  the  de- 
Cal.  105;  Martin  v.  Morris,  62  Wis.  418.  cedent's  name,  in  order  to  pay  debts 

sCreath  v.  Smith,  20  Mo.  113.     It  and  for  partition  of  the  balance.    No 

has  also  been   held  that  in  the  ab-  presentation  for  allowance  to  the  ad- 

sence  of   a  necessity  for  sale,  as  if  ministrator  is  necessary, 
there  are  no  debts,  the  heirs  could       7  Scruggs  u.  Blair,  44  Miss.  406,  413. 

retain  the  title  undisturbed  and  the  Some  cases  have  held  that  the  right 

land  would  be  divided,  in  Way  v.  of  the  surviving  partner  to  resort  to 

Stebbins,  47  Mich.  296 ;  Lang  v.  War-  the  real  estate  is  limited  by  the  ne- 

ing,  25  Ala.  625 ;  60  Am.  Dec.  533 ;  cessity  of  so  doing,  that  is,  the  per- 

Buchan  v.  Sumner,  2  Barb.  Ch.  165,  sonal  property  proper  must  be  first 

206.    And  see  Strong  v.  Lord,  107  111.  resorted  to  and  exhausted.     Easton 

25;  and  Godfrey  v.  White,  43  Mich.  v.  Court wright,  84  Mo.  27;  Stroud  v. 

171;  but  see  §974.  Stroud,   Phil.   (N.  Ca.)  L.  525;  Fos- 

291 


§  295.  CONDUCT  OF  THE  BUSINESS. 

Where  the  administrator  of  the  deceased  partner  brought  pro- 
ceedings to  sell  real  estate  of  which  the  decedent  held  the  title,  and 
under  a  decree  of  the  probate  court  the  property  was  sold,  the 
surviving  partner,  if  he  consented  to  such  sa,le,  may  compel  the 
administrator  to  account  to  him  for  the  purchase  money.'  If  a 
trustee  under  the  will  of  a  partner  has  the  legal  title,  and  in  con- 
junction with  the  surviving  partner  sells  the  property,  a  valid  title 
is  conveyed.'' 

Where  different  tracts  of  land  were  bought  in  the  name  of  differ- 
ent partners,  their  recovery  against  administrators  and  heirs  can- 
not be  obtained  in  the  same  suit,  since  the  heirs  of  some  of  the 
defendants  would  have  a  title  and  interest  in  some  of  the  lands,  and 
others  in  others.* 

§  295.  Notice  to  third  persons. —  The  foregoing  doctrines 
raise  the  very  important  question  of  what  is  notice  of  the 
partnership  equities  to  one  receiving  title  to  a  share  of  the 
real  estate  from  or  through  a  single  partner,  for  if  without 
notice  of  the  partnership  equities  he  acquires  a  good  title. 
A  brief  notice  of  all  the  partnership  cases  upon  this  question 
will  be  given.* 

A  recital  in  a  deed  that  the  conveyance  is  to  S.  and  M.,  partners  as 
S.  &  Co.,  or  other  similar  description,  is  sufficient  to  put  a  mort- 


I 


ter's  Appeal,  74  Pa.  St.  391,  396;  3  262;  Reeves  v.  Ayers,    38    III.    418; 

Am.  Law  Rec.  230;  15  Am.  Rep.  553.  Hiscock  v.    Phelps,   49  N.  Y.    97  (3 

But  this  is  contrary  to  the  principle  Lans.  105) ;  Miller  v.  Proctor,  20  Oh. 

that  winding  up  will  not  be  by  piece-  St.  442,  448 ;    Mason    v.    Parker,   16 

meal,  therefore  these  cases  are  anom-  Grant's  Ch.    (Up.    Can.),    230,    and 

alous.     §§  974-977.     And  contra  in  cases  cited  in  the  succeeding  notes. 

Tennessee  by  statute.  Contra  in  N.  Ca.  Rossu.  Henderson, 

1  Dyer  v.  Clark,  5  Met.  562 ;  39  Am.  77  N.  Ca.  170.  But  a  mortgagee  for 
Dec.  697;  Merritt  v.  Dickey,  38  Mich,  an  antecedent  separate  debt  is  not  a 
41.  And  see  Burnside  v.  Merrick,  4  bona  fide  buyer  as  against  partner- 
Met.  537,  544,  and  Greene  v.  Graham,  ship  ci-editors.  Lewis  u.  Anderson, 
5  Oh.  264;  Mendenhall  v.  Benbow,  supra.  But  see  Reeves  v.  Ayers,  38 
84  N.  Ca.  646.  111.  418.     Nor  is  a  judgment  creditor 

2  West  of  England,  etc.  Bk.  v.  of  one  partner  a  bona  fide  buyer. 
Murch,  L.  R.  23  Ch.  D.  138;  Corser  either  as  against  prior  or  subsequent 
V.  Cartwright,  L.  R.  7  H.  L.  731.  creditors,  mortgagees  or  buyers.  See 

3  Keith  V.  Keith,  143  Mass.  263.  §§  184,  291. 
*Dupuy  V.  Leavenworth,  17   Cal. 

29a 


REAL  ESTATE.  §  295. 

gagee  of  one  of  tliem  on  inquiry.'  If  the  title  is  in  one  partner 
a  iDurchaser  from  the  other  in  whom  is  no  legal  title  has  notice.' 

Where  the  father  of  one  of  the  partners  was  the  purchaser  the 
court  set  aside  the  deed  in  favor  of  the  firm's  assignee,  for  the  bene- 
fit of  creditors,  because  he  must  have  had  notice.^ 

Where  the  partnership  used  and  occupied  the  property  for  its 
business,  this  was  held  of  itself  sufficient  notice  to  a  mortgagee 
that  he  could  only  take  subject  to  equities."* 

But  the  contrary  was  ruled  in  two  earlier  Michigan  cases,  on  the 
ground  that  this  is  consistent  with  individual  ownership;  and  it  is 
common  knowledge  that  firms  occupy  real  estate  either  without 
title  or  as  tenants  in  common,  and  the  buyer  can  rely  on  the  rec- 
ord.'^ 

Whether  the  occupancy  ought  to  convey  notice  was  held  a  ques- 
tion of  mixed  law  and  fact,  because  not  inconsistent  with  a  tenancy 
in  common.* 

Where  the  surviving  partner,  having  the  legal  title  to  an  undi- 
vided half  of  the  land,  sold  the  undivided  half  to  a  person  who 
knew  it  was  partnership  property,  instead  of  selling  it  all  as  a  sur- 
viving partner  may.  do,  such  sale  of  part,  it  was  held,  should  have 
given  the  buyer  presage  of  the  intent  of  the  seller  to  convert  the 

iSigourney  v.  Munn,  ^  Conn.  324;  N.  J.  Eq.  334;  Bergeron  v.  Richar- 
Brewer  u.  Browne,  68  Ala.  210;  Mar-  dott,  55  Wis.  129;  Hoxie  v.  Carr,  1 
tin  u.  Morris,  62  Wis.  418,  429;  Boyce  Sumn.  173,  193.  In  North  Carolina 
V.  Coster,  4  Strob.  Eq.  25,  of  a  recital  it  makes  no  difference  wiiether  the 
of  an  agreement.  vendee  of  the  interest  of  a  partner 

2  Williams  v.  Love,  2  Head,  80.  had  notice  or  not  that  it  was  part- 

3Matlack  u.  James,  13  N.  J.  Eq.  nership  property:  he  takes  subject  to 
126.  If  the  mortgagee  by  inquiry  of  debts.  Ross  v.  Henderson,  77  N.  Ca. 
the  tenant  in  possession  would  have    170. 

learned  of  the  firm's  ownership,  she  5 Hammond  v.  Paxton,  58  Mich, 
is  affected  with  notice.  Baldwins.  393;  Reynolds  u.  Ruckman,  35  id. 
Johnson,  1  N.  J.  Eq.  441.  80.  And  in  Frink  v.  Branch,  16  Conn. 

4  Cavander  v.  Bulteel,  L.  R.  9  Ch.  260,  271 ;  Forde  v.  Herron,  4  Munf. 
App.  79;  Duryeau.  Burt.  28  Cal.  569;  (Va.),  316,  and  all  the  Pennsylvania 
Reeves  v.  Ayres,  38  111.  418;  Divine    cases. 

V.  Mitchum,  4  B.  Mon.  488  (41  Am.  « In  Parker  v.  Bowles,  57  N.  H. 
Dec.  241);  Buck  v.  Winn,  11  id.  320,  491 ;  and  the  point  was  raised  but  not 
323 ;  Kerr  v.  Kingsbury,  39  Mich,  decided  in  Cowden  v.  Cairns,  28  Mo. 
150;  Churchill  v.  Proctor,  31  Minn.  471,  and  Bank  v.  Sawyer,  38  Oh.  St. 
129;  Mechanics' Bank  v.  Godwin,  5    339. 

293 


§  206.  CONDUCT  OF  THE  BUSINESS. 

proceeds  to  his  own  use,  and  the  buyer  attempting  to  acquire  title 
to  a  part  only,  takes  it  at  his  peril.' 

§296.  Conveyances  in  a  firm  name. —  Strictly  speaking, 
the  title  to  land  can  only  be  held  by  or  conveyed  to  a  legal 
person,  natural  or  artificial,  and  cannot  be  held  by  a  con- 
ventional person  not  recognized  as  a  distinct  entity  in  the 
law;  hence,  a  deed  or  mortgage  to  or  by  such  person, 
whether  the  name  be  wholly  fictitious  or  composed  of  sur- 
name &  Co.,  or  surnames  combined,  passes  nothing  at  law, 
partly  because  of  the  technical  absence  of  a  legal  grantee 
and  partly  because  public  policy  requires  a  certainty  in  titles, 
and  a  surname  may  apply  to  many  persons,  and  often  there 
are  several  in  the  same  firm  of  the  same  surname.'^ 

If  the  firm  name  contains  the  name  of  an  individual  with 
"  &  Co.,"  thus  W.  W.  Phelps  &  Co.,  the  individual  receives 
the  title,  and  equity  will  hold  him  as  a  trustee  for  the  firm.' 

Thus,  in  Chavener  v.  Wood,  supra,  J.  D.  Haines,  of  J. 
D,  Haines  &  Bro.,  mortgaged  real  estate  of  the  firm  in  the 
firm  name  with  the  assent  of  the  other  partner,  and  the  in- 
vestment was  held  a  good  legal  mortgage  as  against  him, 
and  an  equitable  mortgage  as  to  the  interest  of  the  other; 
but  that  a  subsequent  legal  mortgage  signed  by  both  to  a 
person  without  notice  of  the  former  mortgage  was  a  prior 
lien  as  to  the  interest  of  the  other  partner.^ 

A  deed  invalid  at  law  because  made  to  an  indefinite  grantee, 
as  a  deed  to  Todd,  Gorton  &  Co.,  or  to  any  unincorporated 
society  in  its  society  name,  will  found  an  equity  in  the  mem- 
bers of  the  firm.' 

1  Tillinghast  v.   Champlin,  4  R.  I.  Percifull  v.  Piatt,  36  Ark.  456,  404; 

173.  218-220.     See  Martin  v.  Morris,  Moreau  v.   Saffarans,  3  Sneed,    595; 

62  Wis.  418.    Contra,  Oflfutt  v.  Scott,  Lindsay  v.  Jaffray,  55  Tex.  626,  641 ; 

I  47  Ala.  104.  Chavener  v.  Wood,  2  Oregon,  182. 

-'Tidd  V.   Rines,  26  Minn.    201;   10  <And  see  Brunson  v.   Morgan,  76 

Cent.    L.  J.   102;  Percifull  v.   Piatt,  Ala.  593. 

36   Ark.    456,   464;  Rammelsberg  v.  'Tidd  r.  Rines,  26  Minn.   201;   10 

Mitchell,  29  Oh.  St.  22,  52.     And  see  Cent.  L.  J.  102;  Douthitt  v.  Stlnson, 

McMurry   v.  Fletcher,    24  Kan.  574;  73  Mo.  199;  Byam  v.    Bickford,  140 

28  id.  337.  Mass.  31. 

•Arthur  v.  Weston,   22  Mo.   378; 

294 


REAL  ESTATE.  §  297. 

But  in  many  states  this  rule  has  been  relaxed,  and  a  deed  or 
mortgage  to  A.  &  B.  or  A.  &  Co.  has  been  held  valid,  or  at  least 
not  void  for  uncertainty  on  proof  of  identity,  doubtless  on  the 
principle  of  id  certum  quod  reddi  certiim  potest;  and  probably  in 
all  states  such  a  deed  or  mortgage  to  or  b}''  partners  in  the  firm 
name  would  be  enforced  in  equity,  where  the  defect  could  be  cured, 
where  the  litigation  is  between  partners,  or  between  a  firm  and  its 
grantee  or  mortgagee,  and  there  is  no  dispute  as  to  priorities  of 
other  liens.' 

And  so  in  Hoffman  v.  Porter,  2  Brock.  158,  a  deed  was  made  to 
Peter  lioffman  &  Son,  a  firm,  and  John  Hoffman,  the  son,  brought  a 
suit  as  surviving  partner  for  breach  of  the  covenant  for  quiet  en- 
joyment; it  was  held  that  the  recital  of  the  fact  of  partnership 
sufficiently  designates  which  son  is  intended,  and  such  son  can  take 
under  the  deed  and  maintain  the  suit.  And  in  Jones  v.  Neale,  2 
Pat.  &  H.  (Ya.)  339, 350,  a  deed  to  two  persons  by  their  firm  name  of 
Neale  &  Bennett  was  held  valid  even  to  convey  the  legal  title  to 
them  as  partnership  property. 

§  297.  Surplus  is  real  estate  in  this  country. —  The  great 
point  of  difference  between  the  English  and  American  law 
is  in  the  degree  of  conversion.  In  England  it  seems  to  be 
now  settled  that  a  partner's  share  in  the  assets  of  the  firm 
is  personal  property  for  all  purposes,  no  matter  of  what  it 
consists;  and  that,  after  satisfying  partnership  liabilities  and 
equities,  the  balance  is  still  divisible  as  personalty  and  goes 
to  the  representative  and  not  to  the  heir,  and  is  not  subject 
to  dower.2 

1  Hoffman  v.  Porter,  2  Brock.  158;  Hunter  v.  Smith,  14  Wis.  683;  Sherry 

Beaman    v.   "Whitney,    20  Me.   413;  v.   Gilmore,    58     id.    324.      And  see 

Lindsay  v.  Hoke,    21   Ala.    543,  544;  Priutup  v.  Turner,  65  Ga.  71 ;  Batty 

Slaughter  v.  Doe  ex  d.  Swift,  67   id.  v.   Adams    County,   16  Neb.   44.     A 

494;  Brunsou  u.  Morgan,  76  id.    593.  lease  signed  in  the  firm  name  by  one 

And  see  Elliott  v.  Dycke,  78  id.  150,  partner,  after  occupancy  by  the  firm 

156;    Cliic-ago  Lumber  Co.   v.  Ash-  and  payment  of  rent  for  two  years, 

worth.  26  Kan.  212;  Orr  v.  How,  55  was  enforced  as  an  agreement  for  a 

Mo.  328 ;  Donaldson  v.  Bank  of  Cape  lease,  in   Kyle  v.  Roberts,  6  Leigh 

Fear,  1  Dev.  Eq.  103;  Hunter  v.  Mar-  (Va.),  495. 

tin,  2  Rich.  (S.  Ca.)  L.  541 ;  Morse  v.        2  Darby  v.  Darby,  3  Drewry,  495; 

Carpenter,    19  Vt.   613;  Baldwin   v.  Murtagh  v.  Costello,    7   Irish  L.    R. 

Richardson,  33    Tex.   16;    Jones   v.  428;  Att'y  Gen  I  v.  Hubbiick,  10  Q. 

Neale,  2    Pat.  &  H.  (Va.)  339,    350;  B.  D.  473;  13  id.  275.  And  so  appar- 

295 


§  298.  CONDUCT  OF  THE  BUSINESS. 

But  the  now  unanimous  American  doctrine  is,  that  after 
the  partnership  demands  are  satisfied  the  unexhausted  sur- 
plus is  real  estate.  The  basis  of  absolute  or  partial  conversion 
into  personalty  is  the  presumed  intention,  and  equity  will 
not  go  further  and  convert  it  into  personalty  for  additional 
purposes,  such  as  for  the  mere  purpose  of  division,  unless 
the  intention  to  convert  for  more  than  partnership  purposes 
appears;  hence,  in  this  country,  the  widow  has  dower  out 
of  a  partner's  share  in  the  surplus,  and  the  share  goes  to 
the  heir  and  not  to  the  executor.^ 

§  298.  Out  and  out  conversion  into  personalty. —  But  the 

partners  can,  if  they  choose,  convert  their  real  estate  into 
personalty  out  and  out,^  so  that  the  surplus  is  personalty  and 
goes  to  the  administrator  and  next  of  kin  as  against  the  heirs. 
They  have  been  held  to  have  done  so  in  a  partnersliip  to 
deal  in  land,  the  real  estate  being  a  commodity.*    Or  if  by 

ently  in  Canada,  Wylie  v.  'Wj'lie,  4  50  N.  Y.  Superior  Ct.  275;  Summey 
Grant's  Ch.    278;    Sanborn   v.    San-  v.  Patton,  1  Winst.  (N.  Ca.)  Eq.  52; 
born,  11  id.  359.  Ferguson  v.  Hass,  Phil.  (N.  Ca.)  Eq. 
1  Logan  V.  Greenlaw,  25  Fed.  Eep.  113;  Stroud  v.  Stroud,  Phil.  (N.  Ca.) 
299;  Murrett  v.  Murphy,  11  Baukr.  L.  525 ;  Greene  v.  Graham,  5  Oh.  264; 
Eeg.    131 ;  Offutt  v.    Scott,    47   Ala.  Rammelsberg  v.  Mitchell,  29  Oh.  St. 
104;  Brewer  u  Browne,    G8  id.    210,  22,  53;  Foster's  Appeal,   74  Pa.  St. 
213;    Espy    v.     Comer,     76  id.   501;  391;  15  Am.  Rep.  553;  3  Am.   Law 
Lenow  v.  Fones,  48  Ark.  557;  Strong  Rec.  230;  Leaf's  Api^eal,  105  Pa,  St. 
V.  Lord,  107   III.  25;  Hale  v.  Plum-  505;  Bowman  u.  Bailey,  20  S.  Ca.  550 
mer,  6  Ind.  121 ;  Matlock  v.  Matlock,  Piper  v.  Smith,  1  Head  (Tenn.),  93 
5  id.  403;  Grisson  v.  Moore,  106  Ind.  Williamson  v.  Fontain,  7  Baxter,  212 
296;  Galbraith -y.  Gedge,  16  B.  Mon.  Griffey  v.  Northcutt,  5  Heisk.  748 
630,  and  Lowe  v.  Lowe,  13  Bush,  688,  Diggs  v.  Brown,  78  Va.  292 ;  Martin 
limiting  intervening  cases;   Buffum  v.  Morris.  62  Wis.   418.    Contra,  see 
V.  Buffum,  49  Me.  108,  110-12;  Good-  Hoxie  v.  Carr,  1   Sumner,  173  {die- 
hum  v.  Stevens,  5GilI(Md.),  1;  s.  C.  turn).     The  former  contrary  rule  in 
1  Md.  Ch.  420;  Shearer  v.  Shearer,  98  Kentucky,  Buck  v.  Winn,  11  B.  Mon. 
Mass.  1 07;  Wilcox  U.Wilcox,  13  Allen,  320;  Bank  of  Louisville  v.    Hall,   8 
252;  Scruggs  v.  Blair,  44  Miss.  406;  Bush,  676,  has  been  limited  by  Lowe 
Holmes  v.  McGee,  27  Mo.  597;  Camp-  v.  Lowe,  13  Bush,  688. 
bell  V.  Campbell,  80   N.  J.   Eq.  415;       2  Davis  v.  Christian,  15  Gratt.  11. 
Buckley   v.    Buckley,    11    Barb.    43;       3  Galbraith  v.   Gedge,    16  B.  Mon. 
Buchan   v.    Sumner,    2     Barb.     Ch.  630 ;  Ludlow  v.  Cooper,  4  Oh.  St.   1. 
165;  Fuirchild  f.  Fuirchild,  64  N.  Y.  Contra,  Strong  u.  Lord,    107    III.  25> 
471  (aff.  5  Hun,  407) ;  Rank  v.  Grote,  Hewitt  v.  Rankin,  41  Iowa,  35. 

296 


REAL  ESTATE.  §  299. 

the  articles  of  partnership  or  agreement  the  surviving  or 
other  partner  on  dissolution  may  take  the  entire  assets, 
there  is  no  reconversion  into  realty  and  the  deceased  part- 
ner's share  is  personalty.^  Or  if  the  articles,  or  even  an  oral 
agreement,  require  the  real  estate  to  be  held  solely  for  part- 
nership purposes,  this  has  been  regarded  as  an  out  and  out 
conversion.''^  The  agreement  to  convert  into  personalty 
for  all  purposes,  so  that  a  surplus  is  not  realty,  must  be 
clear.  ^ 

§  299.  Power  of  individual  partners  to  Ibind  firm  as  to 
real  estate. —  The  power  of  disposition  of  real  estate  in  an 
individual  partner  has  not  yet  been  treated,  for  it  is  a  ques- 
tion independent  of  the  power  to  use  a  seal  or  the  form  of 
the  conveyance,  for  the  want  of  a  power  to  bind  under  seal 
does  not  exist  in  several  states,  and  the  question  of  the 
validity  of  a  contract  to  convey  must  be  solved  independent 
of  the  doctrine  of  seals  and  independent  of  the  form  of 
legal  conveyances  requiring  the  signatures  of  each.  The 
solution  of  the  question  requires  a  distinction  to  be  made 
between  partnership  real  estate  held  as  part  of  the  capital 

1  Leaf  s  Appeal,   105  Pa.    St.  505;  sidered  case,  in  which  the  court  be- 
West  Hickory  Miu.  Ass'n  v.  Reed,  80  lieves  it  has  found  the  doctrine  that 
id.  38,  50 ;  Maddock  v.  Astbury,  32  will  reconcile  the  American  cases. 
K  J.  Eq.  181.  s  Flanagan  v.  Slmck,   83  Ky.  617, 

2Rammelsberg  v.  Mitchell,  29  Oh.  620;  Lenow  v.  Fones,  48  Ark.  557, 
St.  22,  53  (one  judge  dissenting);  Col-  562.  In  Berry  v.  Folkes,  CO  Miss.  576, 
lumb  V.  Read,  24  N.  Y.  505  (but  much  604-5,  an  agreement  by  which  two 
of  the  language  in  this  case  seems  not  persons  bought  a  plantation  on 
consistent  with  the  Fairchild  case  in  credit,  to  work  and  improve  it,  using 
64  N.  Y.  471,  which  professes  to  ap-  the  profits  each  year  to  pay  tiie  pur- 
prove  it).  See,  also,  Goodburn  v.  chase  price,  and,  when  paid  for,  to 
Stevens,  5  GjU,  1 ;  and  such  agree-  divide  it,  was  said  to  be  a  partner- 
ment  may  be  implied  from  the  nat-  ship,  converting  land  into  person- 
ureand  use  of  the  property,  Cornwall  alty  only  for  a  certain  time,  the 
V.  Cornwall,  6  Bush,  369;  Bank  of  lands  being  partnership  lands  so  far 
Louisville  v.  Hall,  8  id.  672;  but  as  to  be  bound  for  debts  of  the  firm, 
these  three  cases  must  be  read  But  when  the  partnership  ends  a 
with  Lowe  ii.  Lowe,  13  Bush,  688,  tenancy  in  common  begins,  and  the 
which  professes  to  approve,  but  lands  would  then  go  to  heirs,  and 
limits  them ;  —  a  most  carefully  con-  are  to  be  partitioned,  not  sold. 

297 


§  299.  CONDUCT  OF  THE  BUSINESS. 

or  for  the  occupation  and  use  of  the  business  of  the  firm, 
and  that  acquired  by  the  firm  as  a  commodity.^ 

1st.  A  partner  has  no  imphed  power  to  sell  or  incumber 
the  real  estate  of  a  firm  not  engaged  in  the  business  of  buy- 
ing and  selling  real  estate,  or  to  bind  the  others  by  a  con- 
tract to  do  so,  and  such  attempted  contract  will  not  be 
specifically  enforced.  I  have  elsewhere  urged  ^  that  the 
partnership  power  of  selhng,  which  is  loosely  said  to  be  a 
power  to  sell  the  entire  property  of  the  firm,  is  confined  to 
property  acquired  for  the  purposes  of  sale.' 

2d.  Where  the  real  estate  is  not  a  mere  incident  of  a 
commercial  partnership,  but  is  the  distinct  substratum  of 
its  business,  as  where  that  consists  in  the  buying  and  sell- 
ing of  real  estate,  or  the  subdivision  and  sale  of  a  tract,  so 
that  such  real  estate  becomes  partnership  stock,  in  the  sense 

1  In  Moran  u  Palmer,  13  Mich.  367,  implied  an  authority,  Mussey  v. 
a  deed  by  one  partner  in  his  own  Holt,  4  Foster  (24  N.  H.),  248  (55  Am. 
name  of  partnership  real  estate  in  Dec.  234);  Shaw  v.  Farusworth,  108 
the  name  of  all  the  partners,  with  Mass.  357.  There  are  many  other 
the  firm's  knowledge  and  acquies-  cases  where  an  attempted  convey- 
cence,  the  firm  receiving  the  avails,  ance  or  incumbrance  by  one  pai'tner 
was  held  valid  against  heirs  of  a  under  seal  was  held  or  stated  obiter 
subsequently  dying  partner.  to  be  invalid  as  against  all  the  part- 

2  §§  403-105.  ners  except  the  signer,  on  the  ground 

3  Robinson  V.  Crowder,  4  McCord  that  he  could  not  bind  the  firm  under 
{S.  Ca),  L.  519,  536;  17  Am.  Dec.  seal.  These  cases,  therefore,  do  not 
762;  Riiffnert'.  McCannel,  17111.  212;  help  us.  Such  cases  will  be  found 
63  Am.  Dec.  362 ;  Lawrence  v.  Tay-  elsewhere ;  among  those  particularly 
lor,  5  Hill,  107;  Dillon  v.  Brown,  11  relating  to  real  estate  are,  Dillon  v. 
Gray,  179,  180;  Sutlive  v.  Jones,  61  Brown,  11  Gray,  179;  Weeks  u.  Mas- 
Ga.  676;  Willey  u  Carter,  4  La.  Ann.  coma  Rake  Co.  58  N.  H.  101;  Bald- 
56;  Keck  V.  Fisher,  58  Mo.  533,  535;  win  v.  Richardson,  33  Tex.  16;  An- 
Arnold  v.  Stevenson,  2  Nev.  234;  thony  v.  Butler,  13  Pet.  423.  The 
McWhorter  u  McMahan,  Clarke,  Ch.  power  of  contracting  to  sell  land 
400;  10  Paige,  386.  See  Elliott  v.  which  may  exist  in  a  surviving  or 
Dycke,  78  Ala.  150,  156;  Donaldson  liquidating  partner  rests  on  the 
V.  Bank  of  Cape  Fear,  1  Dev.  Eq.  power  to  wind  up  and  is  elsewhere 
103.  Leases  made  by  one  partner  in  treated,  or  where  a  partner  has  ab- 
the  prosecution  of  the  business  were  sconded,  see  Assignment  for  Credit- 
recognized  where  the  natui-e  and  ob-  ora. 

ject  of  the  partnership  necessarily 

293 


EEAL  ESTATE.  §  300. 

of  a  commodity,  and  the  rules  of  an  ordinary  commercial 
partnership  apply,  each  partner,  by  the  great  preponderance 
of  authority,  can  bind  the  firm  by  contracts  for  its  disposi- 
tion, since  the  very  scope  of  the  business  implies  the  exist- 
ence of  such  power.' 

In  Chester  v.  Dickerson,  supra^  a  firm  possessed  a  privilege  or 
bond  foi'  the  purchase  of  land;  one  partner  poured  coal  oil  on  the 
property  and  passed  it  off  to  plaintiff  as  oil  lands,  and  the  entire 
firm  was  held  bound  by  the  contract  to  sell,  and  consequently  liable 
for  the  deceit.* 

But  it  must  be  conveyed  as  real  estate  in  all  cases,  that  is,  in  the 
name  of  each  partner,  whether  it  be  converted  out  and  out  into 
personalty  or  not.* 

§  300.  Surviving  partner. —  The  surviving  partner  has 
more  than  a  mere  lien  to  have  the  propert}"  applied  to  pay- 
ing debts,  but  an  equitable  estate;  he  has  the  right  to  control 
the  property,  and  to  treat  it  as  personalty  in  order  to  wind 
up.^  He  can  sell  the  entire  beneficial  interest  without  proceed- 
ings to  get  a  decree  for  that  purpose,®  and  tho  buyer  is  not 
obliged  to  see  to  the  application  of  the  purchase  money, 
as  such  burden  would  greatly  reduce  the  value;  ^  or  convey 

1  Thompson  v.  Bowman,  6  Wall.  it.  In  Morse  v.  Richmond,  6  111. 
316;  Sage  v.  Sherman,  2  N.  Y.  417,  App.  166(aff'd,  97  111.  303),  an  express 
431 ;  Chester  v.  Dickerson,  45  N.  Y.  power  to  borrow,  granted  to  one 
336;  54  id.  1;  13  Am.  Rep.  550  (aff.  member  of  a  firm  dealing  in  real  es- 
52  Barb.  349) ;  Robinson  v.  Crowder,  tate,  was  held  to  carry  the  power  to 
4  McCord  (S.  Ca.),  L.  519,  536-7;  17  give  a  mortgage,  the  title  being  in 
Am.    Dec.    762    (per    Jolmson,   J.);   such  partner  as  trustee. 

Batty  V,  Adams  County,  16  Neb.  44;       3  Davis  v.  Christian,  15  Gratt.  11. 
Baldwin  v.  Richardson,  33  Tex.  16.        ^ Cobble  v.  Tomlinson,  50  Ind.  550; 

But  see  Lawrence  v.  Taylor,  5  Hill,  Merritt  v.   Dickey,   38  Mich.  41,44. 

107.  And  see  cases  cited  under  i^  294. 

2  It  was  said,  however,  in  Foster's  5  Shanks  v.  Klein,  104  U.  S.  18; 
Appeal,  74  Pa.  St.  391,  396-7;  15  Am.  Easton  v.  Courtwright,  84  Mo.  27; 
Rep.  553;  3  Am.  Law  Rec.  230,  per  17  Cal.  262;  Tillinghast  v.  Cham- 
Sharswood,  J.,  to  result  from  the  plin,  4  R.  I.  173;  Griffey  v.  North- 
statute  of  frauds,  that  real  estate  cutt,  5  Heisk.  746  (by  statute  in  Ten- 
never  became  so  far  stock  as  to  give  nessee). 

one  partner  implied  power  to  dispose       6  gee  Tillinghast  v.  Champlin, 
of  the  entire  interest  of  the  firm  in    supra;  Griffey   v.  NortLcutt,  supra. 

299 


§301. 


CONDUCT  OF  THE  BUSINESS. 


to  secure  or  compromise  debts. ^  Hence  rents  derived  from 
the  property  between  the  death  and  the  time  of  sale  go  to 
the  surviving  partner.- 

§301,  Statute  of  frauds. —  Where  a  partnership  holds 
land  not  as  the  chief  purpose  of  its  existence,  but  as  an  in- 
cident to  its  business,  the  statute  of  frauds  does  not  apply, 
and  the  land  may  be  shown  to  be  part  of  the  partnership 
stock  and  affected  with  partnership  equities  by  oral  evi- 
dence. The  partnership  requires  no  writmg  to  prove  it, 
and  exists  outside  of  the  ownership  of  real  estate.  * 

But  the  contrary  is  also  held  to  some  extent,  and  that  lands  ac- 
quired in  the  name  of  one  member  of  an  oral  partnership  could  not 
be  shown  to  be  partnership  lands.'* 

1  Murphy  v.  Abiams,  50  Ala.  293 ;  verted  into  partnership  property  by 
Breen  v.  Richardson,  6  Colorado,  605 ;   oral  agreement  because  of  the  statute 


Van  Staden  v.  Kline,  64  Iowa,  180. 
And  see  §  731. 

2  Dyer  v.  Clark,  5  Met.  5G2;  39  Am. 
Dec.  697 ;  Cilley  v.  Huse,  40  N.  H. 
358;  Hartnettu.  Fegan,  3  Mo.  App.  1. 


of  frauds,  nor  on  the  doctrine  of  re- 
sulting trusts,  because  tlie  trust  does 
notarise  by  implication  of  law.  Par- 
ker V.  Bowles,  57  N.  H.  491.  Person- 
ette  V.  Pryme,  34  N.  J.  Eq.  26,  seems 
3  Re  Farmer,  18  Bankr.  Reg.  207 ;  to  be  opposed  to  this,  where  two  ten- 
Lyman  v.  Lyman,  2  Paine,  C.  C.  11,  ants  in  common  of  a  firm  orally 
22;  Causler  v.  Wharton,  62  Ala.  358;  formed  a  partnership  in  the  land  and 
Scruggs  u,  Russell,  McCahon  (Kan. ),  its  management.  Where  a  partnex'- 
39 ;  Marsh  v.  Davis,  33  Kan.  326 ;  ship  orally  agreed  to  extend  its  deal- 
Fall  River  Whaling  Co.  v.  Borden,  iugs  into  real  estate,  if  the  land  was 
10  Cush.  458;  Sherwood  v.  St.  Paul  bought  in  the  names  of  all,  it  could 
«fc  Chic.  R'y,  21  Minn.  127;  Baldwin  be  shown  to  be  partnership  prop- 
V.  Johnson,  1  N.  J.  Eq.  441;  Per-  ert}',  for  this  is  not  inconsistent  with 
sonette  v.  Pryme,  34  id.  26 ;  Fair-  the  title,  but  if  bought  in  the  name 
child  V.  Fairchild,  64  N.  Y.  471  (afT.  of  one,  it  could  not  be,  was  held  in 
5    Hun,  407);    Smith    v.    Tarlton,    2    Bird  u.  Morrison,  12  Wis.  [138],  Sev- 


Barb.  Ch.  386;  Thompson  v.  Egbert, 
8  N.  Y.  Supreme  Ct.  474;  Knott  v. 
Knott,  6  Oreg.  142 ;  Brooke  v.  Wash- 
ington, 8  Gratt.  248;  56  Am.    Dec. 


eral  of  the  above  cases  are  directly 
opposed  to  the  latter  proposition. 

4  Smith  V.  Burnham,  3  Sumn.  435; 
Bird  V.  Morrison,  12  Wis.  153  [138]; 


142;  McCullyr.  McCuUy,  78  Va.  159;  York  u.  Clemens,  41  Iowa,  95;  Ever- 

Newton  v.  Doran,  3  Grant's  Ch.  (Up.  hart's  Appeal,  106  Pa.  St.  349.    Also, 

Can.)  353.     Cou^ra,  that  real   prop-  Larkins  v.  Rhodes,  5  Porter,  195,  and 

erty   not    bought  vrith  partnership  Rowland  v.  Boozer,  10  Ala.  690,  in 

funds,  and  held,   therefore,  as   ten-  both    of    which    cases    relief    was 

ants    in    common,   cannot  be    con-  granted  on  other  grounds.     Dunbar 

300 


REAL  ESTATE. 


§302. 


§  302.  same  as  to  partnership  to  trade  in  lands.— The 

authorities  are  divided  on  the  question  whether  a  partnership 
to  trade  in  lands  may  be  proved  by  parol  in  order  to  affect 
the  lands  with  partnership  liabihfcies  and  equities.  The  pre- 
ponderance is  in  favor  of  considering  that  the  statute  does 
not  apply  if  the  land  was  or  is  to  be  purchased  with  the 
joint  fund,  whether  the  title  be  taken  in  one  or  all^ 

That  recognition  of  the  partnership  claim  in  letters  to  third  per- 
sons, written  transactions,  books  of  account  ajicl  schedules  of  prop- 
erty is  suiScient  to  satisfy  the  statute.*  Third  persons  are  not 
confined  to  written  proof  of  the  existence  of  a  partnership  to  deal  in 


V.  Bullard,  2  La.  Ann.  810;  Benton  v. 
Roberts,  4  id.  216;  Gray  v.  Palmer,  9 
Cal.    GIG,   639  (a  dictum).     Question 
raised  but  not  decided  in  Fall  River 
Whaling  Co.  v.  Borden,  10  Cusli.  458. 
That  relief  will  be  granted  on  the 
ground  of  a  resulting  trust  if  the  evi- 
dence is  clear  and  certain.  Larkins  v. 
Rhodes,  5  Porter,  195 ;  Piatt  v.  Oliver, 
2  McLean,  267.     But  after  sale  of  the 
lands,  oral  proof  of  an  interest  in  the 
proceeds  on  the  part  of  the  copart- 
ners was  permitted  as  being  person- 
alty.    Everhart's  Appeal,  106  Pa.  St. 
349.     And  damages  for  breach  of  an 
agreement  to  contribute  a  certain 
share  of  the  capital  in  an  oral  part- 
nership to  buy  a  certain  tract  was 
allowed,  not  being  an  action  to  con- 
vey title  or  recover  price.     Meason 
V.  Kaine,  63  Pa.  St.  385.     And  land 
bought   with   individual  funds  and 
owned  by  the  partners  as  tenants  in 
common,  upon  which   the  partner- 
ship conducts  its  business,  cannot  be 
subsequently  converted  into  partner- 
ship    personalty    without    writing; 
hence  partition  cannot  be  defeated 
by  such  oral  evidence.    Alexander  v. 
Kimbro,  49  Miss.  529. 
iDale  V.   Hamilton,  5  Hare,  369; 


Essex  V.  Essex,  20  Beav.  442;  Bunnel 
V.  Taintor,  4  Conn.  568;  Chester  v. 
Dickerson,  54  N.  Y.  1 ;  13  Am.  Rep. 
550 ;  52  Barb.  369 ;  Traphagen  v.  Burt, 
67  id.  30 ;  Williams  v.  Gillies,  75  id. 
197,  201  (rev.  13  Hun,  422);  Richards 
V.  Grinnell,  63  Iowa,  44 ;  50  Am.  Rep. 
727;  Pennybacker  v.  Leary,  65  id. 
230;  Holmes  v.  McCray,  51  Ind.  358; 
19  Am.  Rep.  753;  Clagett  v.  Kil- 
bourne,  1  Black,  346;  Hunter  v. 
Whitehead,  42  Mo.  524;  Springer  v. 
Cabell,  10  id.  640 ;  Harbour  v.  Reed- 
ing, 3  Montana,  15.  And  see  Snyder 
V.  Walford,  33  Minn.  175 ;  Wormser 
V.  Meyer,  54  How.  Pr.  189 ;  Bissell  v. 
Harrington,  18  Hun,  81 ;  Knott  v. 
Knott,  6  Oregon,  142;  Piatt  v.  Oliver, 
2  McLean,  267;  3  How.  401 ;  Smith  v. 
Tarlton,  2  Barb.  Cli.  336.  See  Carr 
V.  Leavitt,  54  Mich.  540.  Contra, 
Smith  V.  Burnham,  3  Sumner,  435, 
458  (this  case  and  Dale  v.  Hamilton, 
supra,  are  the  two  great  leading  ad- 
versary cases  on  the  whole  subject) ; 
Gantt  V.  Gantt,  6  La.  Ann.  677 ;  Pecot 
V.  Armelin,  21  id.  667. 

2  See  Fall  River  Whaling  Co.  v. 
Borden,  10  Cush.  458;  Montague  v. 
Hayes,  10  Gray,  609;  Rowland  v. 
Boozer,  10  Ala.  690. 


301 


§  302.  CONDUCT  OF  THE  BUSINESS. 

real  estate  to  affect  the  property ;  the  statute  of  frauds  only  applies 
inter  se? 

That  a  parol  agreement  by  the  buyer  of  lands  to  admit  another 
into  partnership  with  him  is  void  under  the  statute  of  frauds,  as 
not  different  from  the  contract  of  buyer  and  seller."  A  difference 
between  these  cases  and  those  in  the  note  above  must  be  noticed.  In 
those  the  partnership  was  formed  to  deal  in  land,  but  was  not  itself 
a  transfer  of  the  title,  the  land  not  being  bought  by  the  contract  of 
partnership,  but  in  pursuance  of  it  and  out  of  the  partnership 
funds.  In  the  preseilt  class  of  cases  the  contract  itself  purports  to 
be  a  transfer  of  interest. 

1  In  re  Warren,  2  Ware,  323.  Directly  contra  is  York  v.  Clemens, 

2  Henderson  v.  Hudson,  1  Munf.  41  Iowa,  95 ;  Holmes  v.  McCrary,  51 
(Va.)510;  J?i  re  Warren,  3  Ware,  322.    Ind.  358;  19  Am.  Rep.  735. 

303 


CHAPTER  IV. 

DUTY  TO  OBSERVE  GOOD  FAITH. 

§  303.  The  partners  owe  to  each  other  the  most  scrupu- 
lous good  faith.  Each  one  has  a  right  to  know  all  that  the 
others  know,  and  their  connection  is  one  of  great  confidence; 
and  the  uberrima  fides  of  a  fiduciary  relation  will  be  the 
standard  of  fidelity  exacted  from  them. 

For  example:  A  partner  employed  to  buy  goods  for  the  firm,  if 
he  buy  for  them  goods  of  his  own  at  the  market  price,  must  ac- 
count to  them  for  tbe  profit,  for  otherwise  he  would  be  tempted,  ii 
a  skilful  buyer,  to  use  his  judgment  as  to  the  fluctuations  of  the 
market  for  his  own  benefit.^ 

In  Burton  v.  Wookey,  6  Madd.  367,  B.  &  W.  formed  a  partner- 
ship to  deal  in  lapis  calaminaris,  which  W.  was  to  buy  from  the 
miners  on  behalf  of  the  firm.  W.  was  a  shop-keeper,  and  the 
miners  were  many  of  them  his  customers,  but  he  paid  cash  for  the 
mineral  and  they  paid  cash  for  his  goods,  and  after  the  partnership 
had  been  in  existence  for  some  time,  he  adopted  the  course  of  pay- 
ing for  the  mineral  in  goods  out  of  his  store,  the  change  being 
alleged  to  be  on  account  of  hard  times,  but  charged  B.  as  for 
cash  paid  out.  Sir  John  Leach,  V.  C,  held  that  as  W.  stood  in  a 
relation  of  trust  and  confidence  towards  B.,  and  as  the  profit  of 
purchasing  the  mineral  cheap  would  be  divided  between  him  and 
B.,  but  the  profit  of  paying  a  high  price  for  it  in  store  goods  would 
be  exclusively  his  own,  he  would  be  biassed  against  duly  discharg- 
ing his  duty  to  B.,  and  must  therefore  account  to  B.  for  profits 
upon  the  goods,  and  he  was  compelled  to  divide  those  profits. 

Any  secret  agreement  by  one  partner  on  behalf  of  his  firm,  made 
with  another  firm  in  which  he  has  an  interest,  prejudicial  to  his  co- 
partners will  not  bind  them.'  Nor  can  a  partner  buy  from  the 
firm  without  his  copartner's  assent.  His  power  to  sell  is  not  a  power 
to  sell  to  himself,  and  no  title  is  conveyed  by  such  transfer.*    Even 

1  Bentley  v.  Craven,  18  Beav.  75.  3  Comstock  v.  Buchauaa,  57   Barb. 

2  Goodwin    r.   Einstein,  51    How.    127. 
Pr.  9. 

'303 


g  304.  CONDUCT  OF  THE  BUSINESS. 

in  an  auction  sale  of  damaged  goods  of  tlie  firm,  if  one  partner 
purchase  it  will  be  deemed  as  on  joint  account,  and  lie  must  ac- 
count for  profits  upon  it.' 

Bad  faith,  however,  will  not  be  presumed;  and  where  a  partner 
received  money  of  the  firm  to  buy  goods  for  it,  and  was  never  heard 
of  afterwards,  the  loss  must  fall  upon  the  firm  in  a  controversy  be- 
tween the  other  partner  and  a  person  appointed  administrator  of 
the  absentee  on  a  presumption  that  he  was  dead.* 

So  where  M.  &  J.  were  partners  as  storage  merchants,  and  M.  as 
manager  had  received  for  storage  a  lot  of  grain  receipting  for  it  in 
the  firm  name,  and,  it  having  been  lost  or  converted,  gave  a  part- 
nership note  for  it,  the  fact  that  J.  did  not  know  of  the  transaction, 
and  that  M.  and  the  owner  had  separate  transactions  together,  and 
the  owner  wrote  to  M.  individually,  does  not  show  the  note  to  be 
the  liability  of  M.  alone.^ 

§  JJ04r.  In  all  stages  of  tlieir  connection. —  The  same  strict 
degree  of  good  faith  is  required  of  partners  who  are  such 
only  in  a  single  enterprise  as  a  general  partnership."  So  of 
partners  negotiating  to  form  a  partnership.  While  in  bargain- 
ing with  each  other  they  may  have  the  rights  of  strangers 
with  adverse  interests,  and  each  obtain  as  large  a  share  in 
the  contemplated  firm  as  he  justly  can,  for  here  the  rule  of 
caveat  emptor  applies,^  yet  in  buying  from  third  persons 
the  land  or  stock  which  the  proposed  partnership  is  designed 
to  manage,  he  cannot  retain  a  secret  advantage.^  So  of 
partners  who  have  dissolved  but  not  yet  wound  up  the  busi- 
ness. Until  their  connection  with  their  former  associates  is 
completely  severed,  their  conduct  will  be  tested  by  the  same 
principles.' 

1  Zimmerman  v.   Huber,    29    Ala.  benefit,  Iddings  v.  Bruen,  4    Sandf. 

379.     A.,  who  was  largely  in  debt,  Ch.  223. 

took  B.  into  partnership.  B.  brought  2  Jenkins  v.  Peckinpaugh,  40  Ind. 

in  no   capital,  but  the  firm  assumed  133. 

A.'s  debts,  and  made  immense  prof-  3  Pierce  v.  Jackson,  21  Cal,  636. 

its.     A  debt  of  A.    of  $800,000    was  4  Yeoman  n  Lasley,  40  Oh.  St.  190; 

compromised  at  $200,000,  and  other  Hulett  v.  Fairbanks,  40  id.  233. 

debts  in   like   proportion.     Here  A.  5  Uhler  v.  Semple,  20  N.  J.  Eq.  288. 

does    not  become    creditor  of    the  6  Densmore   Oil  Co.  v.    Densmore, 

firm  for  half  the  difference  between  64  Pa.  St.  43,  50. 

that  and   the   original   amount,  but  •  Lees  v.    Laforest,  14  Beav.   250 ; 

the  compromise  inures  to  the  firm's  Clegg  v.  Fishwick,  1  Mac.   &  G.  294 ; 

304 


DUTY  TO  OBSERVE  GOOD  FAITH.  §  305. 

§  305.  Buying  interests  in  firm's  property. —  If  one  part- 
ner buys  an  outstanding  adverse  title  to  property  belonging 
to  the  firm,  or  acquires  an  interest  in  its  property  without 
his  copartner's  assent,  which  would  be  beneficial  to  the  firm, 
the  purchase  is  deemed  to  be  for  the  firm.^ 

A  partner  who  clandestinely  obtains  in  his  own  name  a 
renewal  of  the  lease  of  the  premises  used  by  the  firm  must 
hold  it  as  partnership  propei'ty.^  So,  though  the  renewal  is 
for  a  term  beyond  the  agreed  duration  of  the  partnership, 
it  inures  to  the  benefit  of  the  estate  of  the  other  partner 
who  has  since  died;'  and  though  he  notifies  his  copartners 
of  his  intended  action  beforehand  and  the  partnership  is  at 
will.*  And  even  if  the  renewal  is  to  begin  from  the  expira- 
tion of  the  partnership,  yet  if  the  partnership  had  made 
improvements  and  enhanced  its  value  by  creating  a  good 
will,  having  built  a  hotel  thereon,  and  though  the  lessor 
might  not  have  granted  the  new  lease  to  the  firm  or  to  the 
other  partners,  tlie  renewal  must  inure  to  the  benefit  of  all.* 

Clements  r.  Hall,  2  DeG.  &  J.  173;  Washburn,  23  Vt.  576.  And  the 
Warren  v.  Schainvvald,  63  Cal.  56.  same  rule  applies  to  the  obtaining  of 
Jones  V.  Dexter,  130  Mass.  3S0 ;  39  any  other  exclusive  use  of  a  right 
Am.  Rep.  459;  Beam  v.  Maconiber,  beneficial  to  the  firm,  Weston  v. 
33  Mich.  127;  Betts  v.  June,  51  N.  Y.  Ketcham,  89  N.  Y.  Superior  Ct.  54. 
274,  278.  Thus,  if  continuing  part-  But  if  the  firm  had  merely  a  pos- 
ners  who  are  to  account  for  coUec-  sessory  title,  and  the- surviving  part- 
tions  to  a  retiring  partner,  neglect  to  ner  bought  the  interest  of  the  de- 
get  in  the  debts,  or  think  fit  to  enter  ceased  in  this  from  the  administrator; 
into  new  arrangements  with  debtors  his  purcliase  of  the  fee  will  not  be" 
by  which  they  become  debtors  of  the  for  the  benefit  of  the  heirs.  Blatch- 
new  firm,  such  partners  are  liable  to  ley  v.  Coles,  6  Colorado,  349. 
the  retiring  partner  for  the  amount  -  Featherstonhaugh  v.  Fenwick,  17- 
of  the  debts  the  same  as  if  collected.  Ves.  298,311;  Clegg  v.  Fishwick,  1 
Lees  V.  Laforest,  14  Beav.  250.  Macn.  &  G.  294;  Struthers  v.  Pearce, 
1  Kinsman  v.  Farkhurst,  18  How.  51  N.  Y.  357;  Clements  v.  Hall,  3 
289  (of  a  patent);  Eakin  v.  Shu-  De  G.  (S;  J.  173;  Alder  v.  Fouracre,  3 
maker,  12  Tex.  51 ;  Forrer  v.  Forrer,  Swanst.  489. 

29  Graft.  134  (by  a  surviving  part-  *  Leach    v.    Leach,    18    Pick.    68; 

ner) ;  Gillett  v.  Gaffney,  3  Colorado,  Clegg  v.  Fishwick,  1  Macn.  &  G.  294. 

351.     The  above   cases  are  of  pur-  ^  Clegg  v.  Edraoudson,  8  De  G.  M. 

chases    of  adverse    interests.      See,  &  G.  787,  807. 

also.  Burn  v.  Strong,  14  Grant's  Cii.  5  Mitchell  v.  Rea<l,  61  N.  Y.  123;  19 

(Up.    Can.)   651;  and   Wasliburn    v.  Am.  Rep.  2")2  (reversing  81  Barb.  310); 
Vol.  1  —  20                              30.1 


§  305.  CONDUCT  OF  THE  BUSINESS. 

But  in  such  case  the  pivotal  fact  is  underhand  or  secret 
dealing;  and  if  this  element  is  absent  and  the  firm  is  dis- 
solved, as  where  one  partner  in  a  hotel  business  dies  and  the 
surviving  partner  procures  a  renewal  of  the  lease,  he  is  not 
obliged  to  hold  it  for  the  joint  benefit,  for  he  cannot  be  ex- 
pected to  run  all  the  risk  and  divide  the  contingent  profits.^ 
And  so  even  though  a  representative  of  the  estate  is  willing 
to  join  as  partner  in  continuing  the  business,  for  that  would 
be  forcing  a  partner  upon  him.^  And  the  same  rules  apply 
to  a  renewal  of  a  lease  by  the  surviving  partner  in  his  own 
name  before  his  connection  with  the  representative  of  the 
deceased  is  ended.* 

And  so  carefully  does  the  law  guard  against  abuses  of 
this  fiduciary  relation  that  if  the  lease  contains  no  privilege 
of  renewal,  yet  the  expectation,  opportunity  or  chance  of 
renewal  will  be  treated  as  an  asset,  and  a  new  lease  by  one 
partner  in  his  own  name  will  be  held  to  be  in  trust  for  the 
firm.* 

These  principles  do  not  apply  where  the  property  interest  m  a 
lease  is  not  in  the  firm  but  exclusively  in  the  partner  himself. 

S.  C.  84  N.  Y.  556  (affirming  19  Hun,  ored  with  the  utmost  industry  and 

418).  good  faith  to  sell  at  an  advance  the 

1  Chittenden  v.  Witbeck,  50  Mich,  joint  property  in  veliich  the  partners 

401.  had  a  privilege  of  purchase  within  a 

2Id.  419,  420.  limited  time,  and  after  the  partner- 

3  Clements  V.  Hall,  2  DeG.  &  J.  173,  ship  has  proved  an  utter  failure  he 

186;  Betts  V.  June,  51  N.  Y.  274,  278;  buys  the  property  with  his  private 

Clegg  V.  Fishwick,  1  Macn.  &  G.  294;  means  to  save  the  forfeiture,  he  was 

Leach  v.  Leach,  18  Pick.  68.  not  held  to  account  for  half  to  bis 

*  Spiess  V.  Rosswogg,  10  Jones  &  copartner.  Kayser  v.  Maugham,  8 
Sp.  135;  63  How.  Pr.  401;  Johnson's  Colorado,  232;  S.  C.  id,  339.  In  Ameri- 
Appeal  (Pa.  1837),  8  Atl.  R.  36.  And  can  Bank  Note  Co.  v.  Edsou,  50 
so  of  partners  in  agencies,  as  for  in-  Barb.  84  (1  Lans.  388),  where  a  part- 
surance  companies,  where  one  on  ner  purchased  a  patent  right  in  an 
dissolution  procures  a  renewal  of  the  article  useful  for  the  business  and 
agencies  for  himself,  although  the  offered  to  sell  it  to  the  firm  at  an  ad- 
other  designs  going  out  of  business,  vance,  not  disclosing  the  purchase 
See  Read  v.  Nevitt,  41  Wis.  348,  ab-  price,  but  they  preferred  to  pay  a 
stracted  in  §  239.  But  there  must  royalty,  it  was  held  that  any  original 
be  limit  to  the  incapacity  of  a  part-  right  to  claim  the  benefit  of  the  pur- 
ner  to  buy,  as  where  he  has  endeav-  chase  expired  at  dissolution. 

806 


DUTY  TO  OBSERVE  GOOD  FAITH.  §  306. 

R.  &  S.  P.,  being  lessees  for  three  years  longer  of  three  stone 
quarries,  with  a  privilege  of  renewal  for  three  years,  formed  a  part- 
nership with  P.  to  prepare  stone  for  building,  the  partnership  to 
continue  for  three  years  and  so  much  longer  as  R.  &  S.  P.  should 
continue  lessees  under  such  lease.  At  the  end  of  the  three  years 
R.  &  S.  P.  refused  to  renew  the  lease,  but  took  a  new  lease  of  two 
of  the  quarries  and  formed  a  new  partnership  with  another  person. 
Held,  the  first  partnership  expired  by  limitation  at  the  end  of 
the  three  years.  The  articles  did  not  oblige  R.  &  S.  P.  to  renew 
the  lease,  as  they  might  have  done,  and  the  court  cannot  add  such 
provision.  The  lease  did  not  belong  to  the  firm,  the  articles  of 
partnership  only  providing  that  the  lessees  should  furnish  the  firm 
with  stone  at  cost.  R.  &  S.  P.  could  refuse  to  renew  the  lease  for 
the  purpose  of  ending  the  partnership  if  they  desired.  The  part- 
nership is  as  if  it  were  for  three  years,  renewable  for  three  more  at 
S.  &  R.'s  option.  And  so,  although  they  may  have  spoken  and 
acted  during  the  partnership  as  if  they  expected  to  renew  the 
lease,  but  not  so  as  to  amount  to  a  new  contract.* 

§  306.  Competing  with  firm. —  If  a  partner  speculate 
with  the  firm's  funds  or  credit  he  must  account  to  his  co- 
partners for  the  profits,  and  bear  the  whole  losses  of  such 
unauthorized  adventures  himself. ^  And  if  he  go  into  com- 
peting business,  depriving  the  firm  of  the  skill,  time  or  dili- 
gence or  fidelity  he  owes  to  it,  so  he  must  account  to  the 
firm  for  the  profits  made  in  it;^  and  a  managing  partner 

1  Phillips  V.  Eeeder,  18  N.  J.  Eq.  and  by  the  above  California  case, 
95.  Whether  a  partner  can  buy  in  and  was  a  dictum,  for  the  case  de- 
fer his  own  use  the  reversion  of  land  cides  that  where  the  other  partner  is 
occupied  by  the  firm  under  a  term  of  negotiating  for  the  same  purchase 
years,  or  per  autre  vie,  is  not  clear  for  the  firm,  with  the  concurrence  of 
on  the  authorities.  It  was  held  that  the  copartner,  the  latter  cannot  ob- 
a  managing  partner  could  not  do  so  tain  the  property  for  himself,  though 
in  Laff  an  v.  Naglee,  9  Cal.  662,  and  the  renewal  of  the  partnership  is  not 
that  an  ordinary  partner  could  do  so  fully  adjusted  as  to  terms, 
in  Batchelor  v.  Whitaker,  88  N.  Ca.  2  See  under  Accounting,  §  793. 
350;  general  language  to  the  effect  3 Todd  v.  Rafferty,  SON.  J.  Eq.  254; 
that  he  can  do  so  in  Anderson  v.  Bast's  Appeal,  70  Pa.  St.  301 ;  McMa- 
Lem'on,  8  N.  Y.  236  (reversing  4  hon  v.  McClernan,  10  W.  Va.  419; 
Sandf.  552),  was  disapproved  in  Fletcher  v.  Ingram,  46  Wis.  191; 
Mitchell  V.  Read,  61   N.  Y.  123,  142,  Lockwood  v.  Beckwith,  6  Mich.  16a 

307 


§  306.  CONDUCT  OF  THE  BUSINESS. 

will  be  enjoined  from  carrying  on  the  same  business  for 
his  own  benefit.^ 

A  partner  cannot  prefer  his  own  interest  to  the  firm's. 
He  cannot  keep  the  benefit  of  a  good  bargain  to  himself;  and 
any  private  advantages  he  may  obtain  by  secret  stipulations 
of  this  kind  must  be  shared  with  his  copartners.* 

The  assent  of  the  other  partners  must  be  very  clear,  and 
will  not  be  inferred  from  slight  circumstances/  nor  even 
from  several  years'  delay  if  they  reasonably  thought  he 
might  ultimately  account.* 

Mere  ownership  in  a  similar  business  may  not  be  inconsistent 
with  the  duties  of  a  partner.  Thus,  a  person  may  be  a  partner  in 
many  newspapers.*  So  in  a  partnership  to  store  cotton,  if  the 
other  partner  refuses  to  engage  further  warehouses,  a  managing 
partner  doing  so  at  his  own  expense,  without  neglecting  his  duties 
as  partner,  is  not  accountable  for  the  profits.®  And  a  dormant  or 
silent  partner  who  only  lends  capital  or  credit  to  the  firm  may  con- 
sistently have  an  antagonistic  interest  if  there  is  no  deception.' 

A  partner  may  traffic  outside  of  the  scope  of  the  business  for 
his  own  benefit.  Thus,  a  partner,  authorized  to  collect  a  debt 
secured  by  mortgage,  bought  in  the  land  for  himself  at  the  fore- 
closure. The  debt  being  paid  in  full,  he  was  held  not  to  be  account- 
able for  profits,  especially  as  the  other  partners  intended  to  "  blufi" 
the  creditors,"  having  liens  adverse  to  them,  and  get  the  land  at  an 
undervalue;  equity  will  not  aid  them  against  their  copartner.®  And 
if  copartners  consent  to  a  partner  spending  his  time,  and  perhaps 
their  materials,  in  making  improvements,  from  which  they  get  a 
benefit,  on  machines  dealt  in  by  the  firm,  his  inventions  are  his 
own,  though  the  articles  of  partnership  required  each  to  devote  his 
time  to  the  business,  even  if  he  has  violated  his  agreement." 

Injunction  will  be  granted  against  a  partner  who  has  covenanted 
to  "  exert  himself  for  the  benefit  of  the  partnership  "  from  break- 

^  Marshall  v.  Johnson,  33  Ga.  500.  6  Parnell  v.  Robinson,  58  Ga.  26. 

'■i  Lowry  v.  Cobb,  9  La.  Ann.  593.  "  Pierce  v.  Daniels,  25  Vt.  624,  634. 

3  Todd  V.  Rafferty,  30   N.    J.    Eq.  8  Wheeler  u  Sage,  1  Wall.  518.  See 

254,  256.  Dean  v.  Macdowell,  8Ch.  D.  245. 

*  Bast's  Appeal,  70  Pa.  St.  301.  9  Belcher  v.  Whittemore,  134  Mass. 

^Glassingtou  v.  Thvvaites,  1  Sim.  &  330. 
Stu.  124,  132. 

308 


DUTY  TO  OBSERVE  GOOD  FAITH.  §  308. 

ing  the  agreement  by  engaging  in  the  same  trade  with  others,'  or 
not  to  engage  in  any  other  business,"  and  against  using  what  be- 
longs to  the  partnership  in  competition  with  it,  but  not  against  a 
mere  temptation  to  do  so.^ 

§  307.  Commissions  obtained  from  those  dealing  with  firm. 

Where  a  firm  is  formed  for  the  pm'pose  of  purcliasing  and 
deahng  in  a  tract  of  land,  or  where  a  firm  buys  land,  a 
secret  arrangement  between  the  seller  and  one  partner  by 
which  the  latter  obtains  a  rewai'd  for  inducing  the  firm  to 
buy,  or  a  commission  on  the  sale,  or  where  such  partner, 
having  an  option  to  buy,  sells  to  the  firm  at  an  advance,  he 
will  of  course  be  compelled  to  account  for  his  gains.* 

But  where  one  partner,  without  objection  from  the  other,  em- 
ployed another  firm  in  which  he  was  a  partner  to  sell  the  firm's 
commodities  on  commission,  whereby  the  firm's  expenses  of  trans- 
portation were  diminished,  and  also  sold  to  the  other  firm,  in  order 
to  enable  them  to  fill  contracts,  at  a  larger  price  than  they  paid, 
he  will  not  be  compelled  to  account  for  his  share  of  the  profits 
made  by  such  other  firm." 

§  308.  Buying  out  or  selling  to  copartner. —  There  is  no 
principle  of  law  that  prevents  one  partner  buying  out  the 
interest  of  the  other  or  selling  to  him  in  good  faith,  provided 
he  acquires  no  secret  benefit  for  himself  at  the  expense  of 

1  Kemble  v.  Kean,  6  Sim.  333.  him  for  accounting  for  it  all ;  that  is 

2  Dean  V.  Macdowell,  8  Ch.  D.  345.    liis  own  loss.     Grant  v.    Hardy,    33 
8  Glassington  v.  Tliwaites,  1  Sim.  &    Wis.  668;  and  see  Bast's  Appeal,  70 

Stu.  134.  Pa.    St.    301.     The    copartners    can 

*Fawcett  v.  Whitehouse,  1   Russ.  withdraw  and  recover  their  capital 

&  M.  131 ;  Hodge  v.   Twituhell,    33  if  they  desire.     Short  v.  Stevenson, 

Minn.    389;    Densmore    Oil    Co.    v.  supra.    But  whether  they  can,  with- 

Densmore,  64  Pa.  St.  43,50;  Shoi't  out  dissolving,  compel  repayment  of 

t-.  Stevenson,  63  Pa.  St.  95;  Emery  the    excess,    see    Faulds    v.    Yates, 

V.  Parrott,  107   Mass.  95;  Duulop  v.  supra.     A  person    with   whom  the 

Richards,  2  E.  D.  Smith,  181 ;  Grant  wrong-doer  goes  into  partnership  to 

V.    Hardy,   33  Wis.    668 ;    Faulds  v.  assist  in  effecting  the  scheme,  if  cog- 

Yates,    57    111.    416;    Delmonico    v.  nizant  of  the   improper  conduct,  is 

Roundebush,    2  McCrary,   C.   C.  18.  liable  jointly  and  severally  with  the 

And  the  fact  that  such   partner  was  partner  to  the  other  associates,    Em- 

to  divide    his   commissions   with   a  try  v.  Parrott,  107  Mass.  95. 
third  person,  and  therefore  does  not        &  Freck    v.    Blakiston,    S3   Pa.    St. 

realize  the  whole,  will  not  relieve  474. 

309 


§  309.  CONDUCT  OF  THE  BUSINESS. 

his  copartner  by  suppressing  information  or  concealing  facts 
which  the  latter  was  entitled  to  know. 

In  Cassels  v.  Stewart,  L.  R.  6  App.  Cas.  64,  it  was  so  ruled  even 
thongh  there  was  a  clause  in  the  articles  that  an  assignment  of  his 
share  by  a  partner  should  be  null,  and  that  the  others  should  have 
the  option  of  buying,  when  this  was  merely  to  prevent  the  inter- 
ference of  strangers  in  the  firm. 

Geddes'  Appeal,  80  Pa.  St.  482,  decides  that  if  partners  desirous 
of  selling  get  their  price,  it  makes  no  difference  that  the  purchaser 
is  secretly  buying  for  the  other  partners,  where  there  was  no  mis- 
representation, although,  in  fact,  the  relations  of  the  partners  not 
being  amicable,  the  seller  would  have  charged  them  more,  and 
though  one  of  the  selling  partners  was  paid  $2,000  more  than  the 
other. 

Bradbury  v.  Barnes,  19  Cal.  120,  decides  that  he  may  even  buy  the 
interest  of  the  other  at  sheriff's  sale  if  with  his  own  funds. 

§  309.  But  deception  of  any  kind,  or  the  non-disclosure  of 
material  facts,  especially  by  a  managing  partner,  will  vitiate 
the  sale.^ 

In  O'Connor  v.  Naughton,  13  Grant's  Ch.  (Up.  Can.)  428,  where 
a  partner  was  induced  to  agree  on  a  dissolution  and  settlement 
under  an  erroneous  impression  that  one  of  the  others  was  about 
to  retire,  and  was  therefore  equally  interested  with  himself  in 
having  a  fair  valuation,  whereas  such  partner  had  secretly  agreed 
with  the  rest  to  continue  after  settling  with  the  first,  the  sale 
was  held  not  binding  by  reason  of  the  deceit. 

Maddeford  v.  Austwick,  1  Sim.  80,"  ruled  that  a  managing  part- 
ner cannot  buy  out  his  copartner  for  a  consideration  which  he 
knows  is  inadequate,  but  conceals  the  fact.' 

So  if  a  surviving  partner  refuses  information  to  enable  represent- 
atives to  determine  whether  to  sell.'* 

In  Brooks  v.  Martin,  2  Wall.  70,  it  was  held  that  to  sustain  a 
purchase  by  a  managing  partner  from  a  copartner  ignorant  of  the 

1  In  White  u.  Cox,  3  Hay.  (Tenn.)79,  3  s.  p.  Brigham  v.  Daua,  29  Vt.  1; 
one  bought  out  the  other  at  an  unrea-  Stephens  v.  Orman,  10  Fla.  9;  Hop- 
tionable  price  by  getting  him  drunk,  kins  v.  Watt,  13  111.  298;  Sexton  v. 
and  the  court  required  an  accounting.  Sexton,  9  Gratt.  204. 

2  Affirmed  without  opinion  in  2  <  Clements  v.  Hall,  2  De  G.  &  J. 
Myl.  (fe  K.  279.  173. 

310 


DUTY  TO  OBSERVE  GOOD  FAITH.  g  309. 

state  of  business,  the  price  must  be  at  least  approximately  adequate, 
and  that  all  information  possessed  by  him  necessary  to  enable  the 
seller  to  form  a  sound  judgment  must  have  been  communicated.' 

In  Pomeroy  v.  Benton,  57  Mo.  531  (s.  c.  14  Am.  Law  Reg.  N. 
S.  306);  s.  c.  77  Mo.  64,  the  managing  partner  used  the  credit  of  the 
firm  in  outside  speculations,  and  by  a  false  balance  sheet  not  men- 
tioning these,  induced  his  copartner  to  sell  out  to  him,  the  sale  was 
reopened,  although  the  selling  partner  had  not  been  vigilant. 

In  Jones  v.  Dexter,  130  Mass.  380;  39  Am.  Rep.  459,  it  was  held 
that  a  partner  acting  for  his  copartner  in  winding  up  the  partner- 
ship, who  at  his  own  sale  of  the  remaining  assets  procures  another 
person  to  buy  for  him,  even  at  public  auction,  and  though  the  other 
partner  also  bid,  must  account  to  him  as  if  no  sale  had  been  made. 

It  was,  however,  held  in  Geddes'  Appeal,  80  Pa.  St.  482,  that 
where  a  selling  partner  was  requested  by  the  buyer  to  examine  the 
books,  and  could  have  done  so  but  did  not,  and  sold  his  share  to  a 
person  who  was  secretly  buying  for  the  other  partner  for  $28,000, 
when  it  was  worth  $34,000,  this  is  not  so  inadequate  nor  such 
fraud  that  a  court  would  set  it  aside  after  six  years'  delay,  although 
the  business  was  so  prosperous  afterwards  that  the  share  was  paid 
for  out  of  profits. 

In  Nicholson  v.  Janeway,  16  N.  J.  Eq.  285,  the  court,  recognizing 
that  concealment  is  as  bad  as  misrepresentation,  said  it  must  be  as  to 
a  material  fact;  and  that  where  the  selling  partner  was  induced  to 
agree  to  an  accounting,  or  promise  to  receive  notes  for  the  balance 
found  due,  the  managing  partners  having  become  convinced  that 
nothing  would  be  found  due,  but  not  telling  him  so,  is  not  ground 
for  decreeing  his  reinstatement  in  the  firm,  for  he  received  all  he 
was  entitled  to  and  the  other  partners  have  been  deprived  of  his 
aid  during  the  interim. 

In  Kintrea  v.  Charles,  12  Grant's  Ch.  (Up.  Can.)  117,  the  partner 
who  had  charge  of  the  books  and  finances  sold  out  to  the  other, 
but  by  mistake  of  the  book-keeper,  of  which  the  buying  partner 
was  innocent,  but  should  have  been  aware,  the  latter  appeared  as 
creditor  of  the  firm  when  he  was  really  debtor,  he  was  required  to 
account  to  the  seller.' 

1  And  so  in  Heath  v.  Waters,  40  between  partner  being  opened  for 
Mich.  457,  of  a  purchase  by  a  surviv-  fraud, but  not  disturbed  for  mere  mis- 
ing  partner  from  an  executrix.  take,  are  numerous  and  will  be  found 

2  The  cases  of  an  agreed  settlement  in  §§  759-763 ;  and  for  purchases  by  a 

311 


g  311.  CONDUCT  OF  THE  BUSINESS, 

§  310.  A  partner  who  purchases  the  interest  of  another 
partner,  in  this  case  in  a  mine,  without  tlie  knowledge  of 
his  copartners,  violates  no  trust  or  confidence  towards  his 
other  partners  merely  by  so  doing,'  But  a  partner  may  buy 
out  one  of  several  other  partners,  although  with  perfect 
fairness  between  buyer  and  seller,  yet  under  such  circum- 
stances as  to  be  held  accountable  to  the  other  partners  for 
the  purchased  share  as  if  bought  for  joint  benefit,  if  he  by 
deception  prevents  them  from  buying. 

In  Warren  v.  Scliainwald,  62  Cal.  56,  certain  partners  proposed 
to  buy  out  the  interest  of  a  deceased  partner,  but  were  prevented 
from  doinof  so  by  the  false  statement  of  one  of  their  number  that 
he  had  already  bought  it;  his  subsequent  purchase  was  held  to 
inure  to  the  joint  benefit  after  reimbursing  him  for  the  outlay. 
But  in  Bissell  v.  Foss,  supra,^  nearl}"  the  contrary  was  held  in  the 
case  of  a  mining  partnership,  where  one  of  the  other  partners  had 
expected  that  one  of  the  purchasers  would  buy  for  him  and  had 
been  led  by  the  latter  so  to  expect.'' 

§  31 1.  Buying  at  execution  sale. —  There  does  not  seem  to 
be  any  reason  why  a  partner  may  not  be  a  purchaser  on  his 
own  behalf  at  an  execution  sale  of  the  partnership  property. 

Yet  it  has  been  held  that  a  partner  is  disabled  to  become  a  pur- 
chaser of  the  firm's  property  at  an  execution  sale  against  the  firm, 
except  in  trust  for  the  partnership,  and  a  purchaser  from  him  with 
notice  occupies  the  same  position.*  Certainly  if  he  pays  by  check- 
surviving  partner  from  the  adminis-  ures  to  all.  But  in  Bradbury  v. 
trator  of  the  deceased  partner,  see  Barnes,  19  Cal.  120,  it  was  said  that 
§  743.  one  partner  could  buy  at  a  slierififs 

1  Bissell  V.  Foss,  114  U.  S.  252  (aff'g  sale  on  execution  levied  on  the  inter- 
B.  C.  sub.  nom.  First  Nat'l  B'k  r.  est  of  his  copartner  in  the  firm;  this, 
Foss,  4  Fed.  Rep.  694,  and  2  McCrary,  however,  was  a  mining  partnership. 
73).  And   in  McKenzie  v.   Dickinson,  43 

2  And  see,  also,  Blaylock's  Appeal,  Cal.  119,  it  was  held  that  one  partner 
73  Pa.  St.  146.  engaged  in  settling  up  after  dissolu- 

s  Lamar  v.  Hale,  79  Va.  147, 158 ;  S.  P.  tion  could  buy  a  judgment  rendered 
Farmer  v.  Samuel,  4  Litt.  (Ky.)  187;  against  his  copartner  and  enf.jrce  it 
14  Am.  Dec.  106 ;  Evans  v.  Gibson,  29  by  levy  and  sale  of  the  debtor's  inter- 
Mo.  223.  In  this  case  it  was  likened  est  in  the  firm,  and  by  buying  there- 
to a  tenant  in  common  buying  in  an  at  become  sole  owner  of  the  assets; 
outstanding  incumbrance  which  in-  and  this  was  placed  on  the  ground 

312 


DUTY  TO  OBSERVE  GOOD  FAITH.  §  312. 

injy  on  tlie  firm's  deposit,  the  sale  will  be  set  aside  and  will  not  be 
even  a  dissolution.'  And  so,  if  he  has  in  his  hands  more  money  of 
the  firm  than  the  amount  of  the  judgments,  unless  the  other  part- 
ner choose  to  insist  on  the  sale.*  Certainly,  if  there  is  the  least 
collusion  or  procurement  of  the  forced  sale  by  the  buying  partner 
io  get  the  property  at  a  discount,*  or  to  force  a  dissolution.* 

B.  &  W.,  being  embarrassed,  dissolved,  putting  all  the  assets  in 
W.'s  hands  in  trust  to  wind -up,  with  power  to  mortgage  the  part- 
nership real  estate  for  that  purpose.  The  firm  was  indebted  to 
W.'s  father,  who  died,  and  W.  was  one  of  his  executors.  A  mort- 
gage by  W.  to  his  co-executors  to  secure  the  debt  was  held  valid, 
and  at  foreclosure  sale,  under  the  mortgage,  W.'s  purchase  for  the 
benefit  of  the  estate,  he  being  the  only  executor  who  had  qualified 
in  this  state,  is  valid,  being  in  good  faith  and  for  a  fair  price,  al- 
though he  was  interested  as  devisee.  His  purchase  is  not  as  trustee, 
but  as  agent  of  the  mortgagees.* 

§  312.  Abandonment  or  neglect  by  complaining  partner. — 
If  a  partner  abandons  the  enterprise  and  leaves  his  associ- 
ates to  bear  the  burden  alone,  the  original  degree  of  obliga- 
tion towards  him  does  not  subsist;''  and   the  inequitable 

that,  outside  of  the  conduct  of  the  he  had  promised  to  buy  for  joint 
business,  each  could  traffic  for  his  benefit  and  the  general  partners  had, 
own  profit  without  restraint.  therefore,  not  prepared  for  the  sale, 

1  Helmore  v.  Smith,  35  Ch.  D.  436.    he  was  on  tliis  account  compelled  to 

2  Bradbury  v.  Barnes,  19  Cal.  120.  carry  out  his  promise.  In  Perens  v. 
See,  also,  Hulett  v.  Fairbanks,  40  Oh.  Johnson,  3  Sm.  &  G.  419,  the  sheriff 
St.  233,  where  a  partner,  having  the  concealed  the  fact  that  a  seam  of 
funds  of  the  firm,  held  them  back  so  coal  in  mining  property  was  nearly 
as  to  force  a  forfeiture   of  a  con-    reached. 

tract  to  buy  land,  iu  order  to  buy  3  Pierce  v.  Daniels,  25  Vt.  624. 

up  the  forfeited  rights  himself.    And  <  Renton  v.  Cliaplin,  9  N.  J,  Eq.  62. 

in  Catron  v.  Shepherd,  8  Neb.  308,  a  So  bankruptcy  of  one  partner  will 

partner  who,  having  a  large  surplus  not   dissolve  the    firm,    if    brought 

of  partnership  profits  iu  his  posses-  about  by  the  other  for  that  purpose. 

Bion,  bought  up  a  claim  against  his  Amsinck  v.  Bean,  22  Wall.  395. 

copartner  for   twenty-five   cents  on  »  Wilson  r.  Bell,   17  Minn.  61.     W 

the  dollar,  was  allowed  to  turn  it  in  was  more  interested  as  partner  than 

on  accounting  only  for  what  he  gave  as  executor. 

for  it.     In  Blaylock's  Appeal,  73  Pa.  eReiUy  v.  Walsh,  11  Irish  Eq.    22; 

St.  146,  a  special  partner  purchased  McLure  v.    Ripley,  3    Macn.    &  G. 

on  execution  against  the  firm,  but  as  274. 

313 


§  314.  CONDUCT  OF  THE  BUSINESS. 

conduct  of  the  injured  partner  may  be  such  as  to  deprive 
him  of  the  right  to  complain  that  his  copartner  had  retained 
to  himself  the  benefit  of  advantageous  transactions.^ 

In  Rhea  v.  Tatliem,  1  Jones  (N.  Ca.),  Eq.  290,  A.,  B.,  C.  andD., 
several  persons,  formed  a  partnership  to  buy  lands  of  the  estate  and 
mine,  A.  and  B.  alone  giving  a  title  bond  for  the  lands.  B.,  C.  and 
D.  abandoned  the  works  for  several  years,  and  A.  in  good  faith  sur- 
rendered the  land  to  the  state,  and  afterwards  obtained  a  pre- 
emption right  on  it  as  an  actual  settler,  and  sold  it,  and  he  was 
held  not  to  be  accountable  for  the  purchase  money. 

§  81.3.  Duty  to  keep  accounts. —  It  is  the  right  of  each 
partner  that  precise  and  accurate  accounts  be  kept  of  the 
business  and  transactions  of  the  firm,  always  ready  for  in- 
spection at  its  place  of  business  and  free  of  access.^  Where 
no  partner  has  the  specific  charge  of  the  accounts,  but  each 
keeps  the  memorandum  of  his  own  transactions,  he  will  be 
held  to  the  strictest  account  for  the  non-performance  of  hi3 
duty  that  the  proofs  will  justify.'  And  if  one  partner  has  the 
duty  of  keeping  the  books,  and  does  not  do  so  properly, 
every  presumption  vi^ill  be  against  him;  he  may  be  charged 
vv^ith  interest  if  no  account  of  profits  can  be  given;  he  will 
be  charged  with  sums  coming  into  his  hands  unless  their 
application  to  joint  benefit  is  most  satisfactorily  proved.* 

§  314.  Access  to  books. —  The  books  should  bekeptattho 
place  of  business,  and  though  their  removal  witliout  con- 

1  Lowry  v.  Cobb,  9  La.  Ann.  593.        they  been  kept  as  they  ought  to  havo 

2  On  the  general  duty  to  keep  ac-  been."  Godfreys  Wliite,  43  Mich, 
counts,  see  Goodman  u  Whitcorab,  171,174.  And  in  other  cases  the  court 
1  Jac.  &  W.  589,  593;  Kowe  v.  have,  after  repeated  attempts  to  do 
Wood,  2  id.  553,  558-9;  Ex  parte  justice  between  the  partners,  been 
Yonge,  3  Ves.  &  B.  31,  36;  Chandler  compelled  to  dismiss  tlie  bill  and  di- 
V.  Sherman,  16  Fla.  99.  The  im-  vide  the  costs.  Vermillion  v.  Bailey, 
portance  of  keeping  proper  books  ia  27  111.  230.  And  may  do  this  rather 
too  obvious  to  need  argument  or  than  grope  in  darkness  in  under- 
illustration.  In  one  case  an  eminent  taking  to  establish  claims  on  mere 
judge  was  led  to  say:  "Nearly  all  contingencies  and  possibilities.  Hall 
the  questions  we  are  called  on  to  de-    v.  Clagett,  48  Md.  223. 

termine  should  have  been  easily  set-       3  Pierce  v.  Scott,  37  Ark.  308. 
tied  by  the  partnership  books,  had       *  See  §  765.  i 

314 


DUTY  TO  OBSERVE  GOOD  FAITH.  g  314. 

sent  of  a  partner  is  not  ground  for  dissolution  and  receiver,' 
it  is  ground  for  injunction.'^ 

In  Greatrex  v.  Greatrex,  1  De  G.  &  S.  692,  the  books 
when  last  seen  were  being  carried  down  the  road  in  a  wheel- 
barrow by  defendant.  The  injunction  was  not  mandatory 
to  bring  them  back,  but  was  against  his  keeping  them  at 
any  other  place  than  the  counting  house. 

It  is  the  right  of  each  partner  to  have  free  access  to  the 
books,  and  make  copies  or  extracts  from  them. 

Hence,  where  a  person  called  on  for  discovery  makes  answer  that 
the  information  was  contained  in  books  of  a  firm  to  which  he  be- 
longed, and  that,  on  applying  to  his  partners  for  permission  to  make 
extracts,  they  refused,  this  is  not  sufficient;  he  was  not  obligai  to 
ask  permission  unless  he  had  given  up  his  right  of  access  by  con- 
tract.* 

And  though  a  person  entitled  to  receive  a  share  of  the  profits 
has  by  eoiitract  agreed  that  he  was  to  have  no  right  to  see  the 
books  and  accounts,  but  will  take  the  defendant's  word,  yet  if  there 
is  a  dispute  as  to  what  per  cent,  of  profits  it  was  agreed  he  should 
have,  and  the  books  will  settle  the  dispute,  the  court  will  not  per- 
mit the  defendant  to  withhold  the  evidence.'*  Nor  can  a  partner 
who  keeps  the  accounts  in  a  private  book  of  his  own,  though  he 
transcribe  them  into  the  partnership  books  for  inspection,  withhold 
such  private  book  from  the  inspection  of  his  partners."  And  if  the 
copartners  permit  a  partner  to  keep  his  accounts  of  outside  mat- 
ters, as  of  an  estate  of  which  he  is  executor,  in  the  partnership 
books,  they  must  submit  to  his  being  compelled  to  produce  them.* 

1  Goodman  i'.  Whitcomb,  1  Jac,  &  case,  Ward  v.  Apprice,  6  Mod.  264, 
W.  589,  593.  has  held  that  a  court  of  law  could 

2  Charlton  v.  Poulter,  cited  in  note  not  enforce  a  partner's  riglit  to  have 
to  Norway  v.  Rowe,  19  Ves.  144,  149;  the  books  producedat  atrial  between 
Greatrex  v.   Greatrex,  1   DeG.  &  S.  the  partners. 

692;  Taylor  u  Davis,  cited  in  note  to  *  Turner  v.  Bayley,  34  Beav.    105, 

Whittaker  v.  Howe,  3  Beav.  383,  388,  aflfg.    s.  C.    as  Turney  v.   Bayley,  4 

where,  however,    there  was  an  ex-  DeG.  J.  &  S.  332. 

press  stipulation  in  the  articles.  5  Toulmin  v.  Copland,  3  Y.  &  C.  Ex. 

s  Stuart  V.  Lord  Bute,  12  Sim.  460;  625,  600-1. 

Taylor  v.  Rundell,  1  Ph.  222  (aflfg.  6  Freeman  v.  Fairlie,  3  Mer.  34,  43. 
1  Y.  &  C.  C.  C.  128.)    An  antiquated 

315 


CHAPTER  V. 

IMPLIED  POWERS  OF  EACH  PARTNER. 

§  315.  General  principles. —  Every  partner  is  the  general 
agent  of  the  firm  to  carry  out  its  objects  and  transact  its 
business  in  the  usual  and  ordinary  way.  He  is  not  the 
agent  of  each  partner  individually,  and  hence  cannot  bind 
them  severally,  or  any  member  of  them  less  than  all;  ^  but 
unless  his  power  is  limited  by  the  articles,  and  the  restric- 
tion is  known,  he  represents  all  the  powers  of  the  firm 
within  the  scope  of  its  ordinary  business. 

The  authority  of  a  partner  as  affecting  third  persons  may 
be  of  two  kinds:  the  real  authority  derived  from  the  articles, 
or  nature  of  the  business  in  the  absence  of  articles,  and  the 
apparent  authority  derived  from  the  nature  of  the  business, 
though  withheld  by  the  articles.  If,  for  example,  the  nat- 
ure of  the  business  does  not  warrant  supposing  a  power  to 
exist,  but  the  articles  grant  such  power,  a  person  in  igno- 
rance of  the  articles,  dealing  with  a  partner  in  such  matter, 
can  hold  the  firm,  for  the  partner  is  acting  within  his 
actual  authority.  If,  however,  the  articles  forbid  to  a  single 
partner  the  exercise  of  a  power  which  the  apparent  scope  of 
the  business  warrants,  a  person  dealing  with  him  in  igno- 
rance of  the  secret  restrictions  of  the  articles  can  hold  the 
firm. 

Hence  one  of  the  most  important  matters  in  partnership 
law  is  to  ascertain  what  is  included  in  the  apparent  scope  of 
the  business.  Scope  may  be  generally  described  as  includ- 
ing what  is  reasonably  necessary  for  the  successful  conduct 

1  Elliot   V.  Davis,  2   B.   &   P.  838;    Christy,  17  lowt.,  S33.    And  see  Mar- 
Gillow   V.  Lillie,  1    Bing.  N.    C.  695;    lett   v.  Jackmau,  8   Allen,    287,  291; 
Terrell  v.  Ilurst,  76  Ala.  588;  Shaw    Snow  r.  Howarn,  35  Barb.    55;  Mar- 
V.  State,    56   Intl.    188 ;    Ryerson   v.    via  v.  Wilber,  52  N.  Y.  270. 
Hendrie,  22  Iowa,   480 ;  Sherman  v. 

316 


IMPLIED  POWERS  OF  EACH  PARTNER.  §  310. 

of  the  business,  measured  by  the  nature  of  the  business,  the 
usages  of  those  engaged  in  the  same,  occupation  in  the  same 
locaUty,  and  subject  to  be  enlarged  also  by  the  known  habits 
and  conduct  of  the  particular  firm  itself.  Each  of  these  ele- 
ments must  be  particularlj^  examined. 

The  fact  that  to  one  partner  is  assigned  the  care  of  one  department 
of  the  business,  as  buying  or  selling,  does  not  prevent  another 
partner  binding  the  firm  by  a  contract  in  such  department,^  And 
appointing  a  partner  special  agent  to  manage  the  business  does  not 
necessarily  limit  his  powers  as  a  partner,  but  he  retains  them  the 
same  as  if  not  constituted  an  agent; "  and  the  fact  that  a  partner 
has  contributed  services  only,  and  not  capital,  does  not  affect  his 
powers.* 

§  316.  IS^ature  of  the  business.— The  most  important  ele- 
ment to  be  relied  upon  by  persons  dealing  with  the  firm 
through  one  partner,  to  determine  his  authority,  is  the  nat- 
ure of  the  particular  business  in  which  it  is  engaged.  Every 
occupation  has  certain  essential  characteristics  determining, 
in  the  absence  of  notice  to  the  contrary,  what  powers  a 
partner  may  be  assumed  to  possess;  and  the  articles  almost 
never  enumerate  a  partner's  powers,  and  are  rarely,  if  ever, 
seen;  hence  the  public  can  judge  only  by  appearances,  and 
the  articles  cannot  be  used  to  control  the  apparent  scope  of 
the  business  as  against  one  who  had  no  notice  of  them. 

Where  a  partnership  business  was  the  manufacture  and  selling 
of  hulless  oats,  the  restriction  as  to  the  kind  of  oats  dealt  in  being 
kept  secret,  a  purchase  by  one  partner  or  an  agent  of  common 
oats,  being  within  the  apparent  scope,  is  binding.*  So  where  the 
business  was  the  buying  and  selling  of  hogs,  a  person  justified  in 
believing  the  business  included  the  sale  of  hogs  on  commission  can 
hold  the  firm  on  a  contract  Avith  a  partner  who  received  his  hogs 
to  sell  on  commission  and  failed  to  account  for  the  proceeds.* 

In  Maltby  v.  Northwestern  Va.  R.  R.  Co.  16  Md.  422,  where  the 

» Barker  v.    Mann,    5    Biiyh,   672;  <McNeish  v.   Hulless  Oat  Co.   57 

Sweet  V.   Morrison,   103  N.   Y.  2::^5;  Vt.  316. 

Morans  v.  Armstrong,  Arms.  M.    &  5  Jackson  v.  Todd,  56  Ind.  406,  and 

O.  Irish  N.  P.  Rep.  25.  Todd   v.   Jackson,    75    id.    272;    but 

2Hoskiason  v.  Eliot,  62  Pa.  St.  393.  there  was  proof  that  the  other  part- 

*  Kennedy  v.  Kennedy,  3  Dana,  23!».  nera  were  aware  of  the  contract. 

317 


§317.  CONDUCT  OF  THE  BUSINESS. 

principal  business  of  the  firm  was  the  packing  and  transporting  of 
oysters  to  the  west,  but  the  partners  had  formerly  owned  a  line  of 
wagons,  bought  and  sold  real  estate  in  their  joint  names,  owned 
vessels  and  employed  them  in  the  coasting  trade,  and  subscribed 
for  and  bought  and  sold  railroad  stock,  a  jury  was  held  warranted 
in  finding  that  a  particular  subscription  to  railroad  stock  by  one 
partner  in  the  firm  name  was  within  the  scope  of  the  business.' 

§317.  same    as    against   third    persons. —  On  the 

other  hand,  the  nature  of  every  business  implies  certain  in- 
trinsic restrictions,  to  exceed  which  requires  express  author- 
ity, and  which  third  persons  dealing  with  a  partner  must 
observe.  The  powers  of  a  partner  do  not  extend  beyond 
what  may  fairly  be  regarded  as  coming  within  the  ordinary 
necessities  of  the  business.^  A  partner  can  only  bind  the 
firm  within  the  scope  of  the  business,  and  a  firm  is  not 
bound  by  a  purchase  of  goods  by  one  partner  which  is  out- 
side the  real  or  apparent  scope.  When  that  limit  is  de- 
parted from  the  act  is  analogous  to  the  act  of  a  member  of 
a  non-trading  firm,  and  every  person  must  take  notice  of 
this  fact.'  Almost  all  partnerships  are,  in  one  sense,  par- 
ticular partnerships.  It  is  very  rare  that  more  than  one 
branch  of  business  is  in  view  or  that  all  varieties  of  trade 
are  embraced;*  and  the  intrinsic  characteristics  of  well- 
known  callings  are  recognized  by  the  court  as  presumptive 

1  And  if  specially  authorized  the  How.  (Miss.)  422;  Livingston  v. 
subscription  may  be  in  the  firm  Roosevelt,  4  Johns.  251  (4  Am.  Dec. 
name,  though  each  subscriber  is  by  273) ;  Briggs  v.  Hubert,  14  S.  Ca.  620; 
statute  required  to  subscribe  his  Venable  v.  Levick,  2  Head,  351; 
name.  Ogdensburgh,  etc.  R.  R.  v.  Bankhead  v.  Alloway,  6  Cold.  56; 
Frost,  21  Barb.  541;  Union  Hotel  Co.  Goode  v.  McCartney,  10  Tex.  193; 
V.  Hersee,  79  N.  Y.  454.  And  if  not  Eraser  v.  McLeod.  8  Grant's  Ch.  (Up. 
authorized  the  signer  is  himself  lia-  Can.)  2G8.  Scope  was  said  to  be  a 
ble.  Union  Hotel  Co.  v.  Hersee,  question  of  law  in  Banner  Tobacco 
supra.  Co.  v.  Jenisou,  48  Mich.  459;  and  of 

2  Hotchin  v.  Kent,  8  Mich.  526.  fact  in  Taylor  v.  Jones,  42  N.  H.  25; 

3  Irwin  V.  Williar,  110  U.  S.  499,  Hodges  v.  Ninth  Nat'l  B'k,  54  Md. 
505;  U.  S.  Bank  v.  Binuey,  5  Mason,  406. 

176;  Thompson  v.  Head,  2  Ind.  245;       <  Livingston  r.  Roosevelt,  4  Johns 
Wayne  v.  Clay,  1  A.  K.  Mar.  257;   251,  277  (4  Am.  Dec.  273);  Waldenv. 
Maltby  v.    Nortli  western  Va.  R.  R.    Sherburne,  15  id.  409,  423. 
Co.  16  Md.  422;  Goode  v.  Linecum,  1 

318 


IMPLIED  POWERS  OF  EACH  PARTNER.  §  317. 

limitations.*  And  some  extreme  examples  will  now  be 
given,  showing  that  scope  is  a  proper  matter  of  judicial  cog- 
nizance; and  though  scope  may  in  general  be  a  question  of 
fact,  yet  many  acts  have  become  settled,  as  matter  of  law, 
to  be  within  or  without  the  implied  powers  of  a  partner. 

Thus  it  is  not  within  the  scope  of  a  grocery  firm  to  buy  dry  goods;  * 
nor  of  millers  and  grain  dealers  to  deal  in  futures  for  purposes  of 
speculating  on  the  market;'  nor  of  partners  in  an  iron  furnace  to 
buy  a  distillery  and  give  the  firm's  note  for  it;''  nor  of  a  printing 
and  newspaper  oflBce  to  accept  an  agency  to  sell  pianos;  *  nor  of  a  mer- 
cantile partnership  to  furnish  railroad  ties ;  *  nor  of  machinists  to  sub- 
scribe to  an  association  to  keep  a  harbor  open  and  free  from  ice;' 
nor  of  a  storage  and  commission  house  to  engage  in  cotton  specula- 
tion;^ nor  of  a  firm  formed  to  buy  hides  and  furs  in  Montana  and 
sell  them  in  Chicago  to  purchase  groceries."  A  member  of  a  part- 
nership in  a  patent  right  for  the  navigation  of  steam  vessels  can- 
not bind  the  firm  by  a  contract  to  build  steamboats."  The  active 
partner  in  a  planting  and  farming  business  cannot  bind  his  co- 
partner by  opening  a  store  to  sell  merchandise;"  nor  can  one  of  a 
firm  of  millers  open  a  grocery;  '^  nor  one  of  a  firm  to  build  and  run 
a  railroad  buy  a  competing  road  —  the  objects  of  the  partnership  are 
confined  to  a  definite  purpose; "  nor  is  it  in  the  scope  of  a  ware- 
house, commission,  receiving  and  forwarding  business  to  receive 
uncurrent  bank-notes  for  sale  and  conversion  into  current  funds;  '* 

1  With  this  caution,  however,  that  l"  Lawrence  v.  Dale,  3  Johns.  Ch. 
as  all  acts  beyond  such  limits  may   23. 

be  binding  by  express  authority  or  li  Humes  t;.  O'Bryan,  74  Ala.  64,  82. 

subsequent    ratification,   or    known  12  Banner  Tobacco  Co.  v.  Jenison, 

usage    of    the    firm,    the    objection  48  Mich.  459.     In  this  case  a  stock  of 

should  be  raised  at  the  trial,  where  goods  had  been  taken  by  one  partner 

these  replies  can  be  made.     Shaw  v.  for  a  debt  and  the  debtor  employed 

McGregory,  105  Mass.  96,  102.  as  an  agent  to  sell  them,  but   for 

2  Ferguson  v.  Shepherd,  1  Sneed  four  years  the  agent,  under  the  direc- 
(Tenn.),  2o4.  tion  of  the  partner,  had  bought  new 

5  Irwin  u  Williar,  110  U.  S.  499.  goods  to  replenish  the  stock  and 
*  Waller  v.  Keyes,  6  Vt.  257.  did  business  in  the  name  of  the 
8  Board  man  v.  Adams,  5  Iowa,  224.  firm,    and   it   was   held   that    slight 

6  Rimel  v.  Hayes,  83  Mo.  200.  circumstances,  such  as  not  dissent- 

7  Wells  V.  Turner,  16  Md.  133.  ing,  would  be  sufficient  to  show  rati- 

8  Freeman  v.    Bloomfield,  43  Mo.  fication. 

891.  13  Roberts'  Appeal,  92  Pa.  St.  407. 

•Taylor  v.  Webster,  39  N.  J.  L.  102.        i<  Goodman  v.  White,"  25  Miss.  163 

319 


§  318.  CONDUCT  OF  THE  BUSINESS, 

nor  of  a  sugar  refining  firm  to  give  a  note  for  brandy,'  tliongli  a  note 
for  wine  was  deemed  within  the  apparent  scope  of  a  manufacturer 
of  cider  and  vinegar." 

One  of  a  partnership  to  buy  and  sell  merchandise  cannot  under- 
take the  collection  of  notes  or  moneys  for  others.'  Thus  in  Toof  v. 
Duncan,  45  Miss.  48,  F.,  one  of  a  firm  to  ship  and  sell  cotton,  be- 
ing on  a  tradiug  expedition  for  the  firm,  was  asked  by  D.  to  collect 
a  draft  for  him.  F.  indorsed  the  draft  to  his  firm  and  asked  to 
have  it  put  to  his  credit.  The  firm  collected  the  draft,  and  F.  with- 
drew the  amount  and  did  not  pay  it  to  D.,  and  the  other  partners 
were  held  not  liable  to  D.  for  it.  The  court  said  that  had  D.  drawn 
the  draft  payable  to  the  firm,  instead  of  to  F.  alone,  the  firm  would 
have  been  liable.  This  is  no  doubt  true,  since  it  passed,  through 
their  hands;  but  had  F.  collected  it  himself  without  their  knowl- 
edge, the  mere  form  of  the  draft  would  not  have  affected  them,  for, 
being  outside  the  scope  of  the  business,  their  knowledge  is  necessary 
to  an  assent.  Or  receive  a  deposit  of  bonds.  A  habit  of  receiving 
deposits  of  money  and  paying  interest  on  them  does  not  give  the 
authority  to  receive  bonds,  for  money  would  be  a  benefit  to  it.'' 
And  hence,  too,  where  a  ferry  boat  operated  in  partnership  cannot 
run  by  reason  of  low  water,  a  partner  is  not  authorized  to  bind  the 
firm  by  a  contract  to  assist  in  swimming  cattle  across,  and  if  the 
cattle  are  drowned  the  other  partner  is  not  liable.^ 

In  Battle  v.  Street  (Tenn.),  2  S.  W.  Rep.  384,  a  firm  bought  and 
paid  for  property;  the  vendor  then  deposited  the  money  Avitli  one 
partner  without  the  knowledge  of  the  rest,  to  be  held  until  the 
buyers  were  satisfied  with  the  title;  the  firm  was  held  not  responsi- 
ble for  the  money. 

§  318.  Usages  of  similar  firms. —  The  usages  of  those  en- 
gaged ill  a  similar  pursuit  is  an  element  in  determining  the 
scope  of  a  business,  because  each  partner  is  presumed  to 
.have  intended  to  clothe  his  copartners  with  all  the  powders 
incidental  to  and  usually  exercised  in  the  same  business  in 
that  locality,  for  the  public  can  only  measure  a  partner's 

1  Livingston  v.  Roosevelt,  4  Johns.  Toof  r.  Duncan,  45  Miss.  48;  Hutch- 
251;  4  Am.  Dec.  273.  ius  v.  Gilman,  9  N.  H.  359. 

2  Augusta  Wine  Co.  v.  Weippert,  *Hatheway's  Appeal,  53  Mich.  113. 
14  Mo.  App.  483.  5  Eiustman  v.   Black,  14  111.  App. 

sPickels  V.    McPherson,    59   Miss.    381. 
216;  Hogan  v.  Reynolds,  8  Ala.  59; 

320 


IMPLIED  POWERS  OF  EACH  PARTNER.  §310. 

powers  by  the  nature  of  the  business  in  connection  with 
such  usage,  and  can  assume  that  the  business  is  to  be  con- 
ducted in  the  usual  and  ordinary  manner.  Hence  the  com- 
mon and  usual  dealings  of  persons  engaged  in  tlie  same 
business  in  the  locality  are  competent  to  sliow  the  nature 
and  scope  of  a  partnership;  ^  and  their  common  opinion  and 
usage  furnishes  the  only  practical  and  safe  rule  to  deter- 
mine it.^  The  scope  of  the  business  may  be  one  thing  in 
Brazil,  another  in  Indiana,  and  another  in  Baltimore.  It 
may  be  different  where  the  business  is  alone  from  one  in 
connection  with  a  mill  in  a  town.* 

Where  the  usage  of  river  carriers,  when  freights  are  dull,  is  to  pur- 
chase cargoes  of  salt  to  be  sold  on  the  return  -up  trip,  such  purchase 
by  a  partner  binds  the  firm  to  pay  the  seller/  So  if  the  usage  of 
boatmen  on  a  particular  river,  as  an  incident  to  the  procuring  of 
freight,  is  not  only  to  carry,  but,  if  requested,  to  sell  the  cargo  and 
bring  back  the  proceeds,  a  partner  in  a  boatiug  firm,  who  so  sells 
on  request  and  fails  to  account  for  the  proceeds,  is  acting  as  part- 
ner and  not  as  the  owner's  agent,  and  the  firm  is  accountable,*  al- 
though but  for  the  usage  such  a  contract  would  have  been  entirely 
outside  the  limits  of  the  business.^ 

It  has  been  held  that  the  usage  must  be  sufficiently  notorious, 
common  and  public,  that  the  copartners  can  be  presumed  to  have 
had  notice  of  it.' 

§  319.  Usage  of  the  same  firm. —  And  within  powers 
granted  by  the  articles  may  be  included  powers  granted  by 
implication  from  a  general  usage  or  habit  of  the  firm, 
acquiesced  in  by  all  the  partners,  for  this  is  equivalent  to 
an  agreed  enlargement  of  the  articles. 

Acts,  declarations  and  the  course  of  business  determine  its 
nature  and  extent.^    In  so  far  as  scope  is  to  be  determined 

1  Smith  V.  Collins,  115  Mass.  388;       5  Galloway  v.  Hughes,    1   Bail.  (S. 
Irwin   V.    Williar,    110     U.    S.     499;    Ca.)  L.  553. 

Pierce  v.  Jaruagin,  5  Miss.  107.  6  Nichols  v.  Hughes,  2  Bail.  (S.  Ca.) 

2  Galloway  u.  Hughes,  1  Bail.  (S.Ca.)   L.  109. 

L.  553,  5G3.  "  Prince  v.  Crawford,  50  Miss.  344. 

3  Per  Matthews,    J.,  in  Irwin  v.        8  Waller  u.  Keyes,  6  Vt.    257,  264; 
Williar,  110  Mass.  499.  Kelton     v.    Leonard,    54     id.     230; 

<  Waring  v.  Grady,  49  Ala.  465.  McNeish  v.  Hulless  Oat  Co.  57  id. 

Vol.  1  —  21  321 


§  320.  CONDUCT  OF  THE  BUSINESS. 

from  the  habit  of  the  particular  partnership,  an  act  or  con- 
tract must  appear  to  have  been  authorized  by  the  general 
course  of  dealing,'  but  by  these  a  firm  formed  for  a  dry 
goods  and  grocery  business  may,  by  a  habit  of  trading  in 
everything,  become  liable  for  a  purchase  of  hogs  in  its  name 
by  one  partner.^  Hence  prior  similar  acts,  or  habit  of  the 
firm,  are  evidence  of  authority.'  But  the  partners  are  not 
liable  merely  because  they  have  sometimes  done  a  thing  of 
unusual  or  rare  occurrence.'* 

So  where  one  partner  in  a  newspaper  and  printing  office  under- 
took to  sell  pianos  for  the  firm,  after  both  partners  had  accepted 
an  agency  for  the  sale  of  the  pianos,  each  became  liable  for  the  acts 
of.the  other  in  the  scope  of  the  new  business.^ 

And  where  a  firm  is  formed  to  sell  on  consignments  alone,  that 
is,  without  power  to  buy,  a  managing  partner  having  for  two  years 
purchased  stock  upon  credit,  the  ignorance  of  the  other  partner 
"was  held  to  be  no  defense,  and  the  firm  appearing  to  be  an  ordi- 
nary commercial  firm,  the  right  to  buy  on  credit  to  replenish 
stock  was  implied.* 

§  320.  Necessity  as  an  element  of  scope. —  The  phrase 
necessities  of  the  business,  used  above  in  defining  the  term 
scope,  is  not  a  necessity  arising  from  peculiar  exigencies  nor 
an  exceptional  and  individual  emergency,  but  moans  what 
is  necessary  to  carry  on  the  business  in  the  ordinary  way. 
A  partner's  power  is  to  do  only  what  is  usual,  and  not  what  is 
unusual  because  necessary.''  For  example,  if  the  borrowing 
power  is  not  necessary  to  the  conduct  of  the  business  in  the 

316 ;  Lyman  v.  Lyman,  2  Paine,  C.  C.  in  the  articles  may  be  entirely  abro- 

11,    15;  Irwin  v.  Williar,    110  U.  S.  gated  by  the  practice  of  the  firm  as- 

499,  505.  sented  to   by  all  the  partners.     See 

1  Catlin  V.  Gilders,  8  Ala.  536,  546.  g  211. 

2  Id.  *  Fraser  v.  McLeod,  8  Grant's  Ch. 
sPahlman  v.   Taylor,  75  111.    629;  (Up.  Can.)  268. 

Folk  V.  Wilson,  21    Md.   538;  Hamil-  5  Boardman  v.  Adams,  5  Iowa,  224; 

ton  v.  Phoenix  Ins.    Co.    106  Mass.  Williar  v.  Irwin,  11  Biss.  57  (reversed 

395;  Holt  v.  Simmons,  16  Mo.  App.  on  other  points  in  110  U.  S.  499). 

97 ;  McGregor  v.  Cleveland,  5  Wend.  «  Ala.  Fertilizer  Co.  v.  Reynolds,  79 

477 ;  Hoskisson  v.   Eliot,  62  Pa.  St,  Ala.  497. 

393 ;  Lee  v.   Macdonald,  6   Up.  Can.  7  See  Ricketts  v.  Bennett,  4  C.  B. 

Q.  B.    (Old   Ser.)   130.      Restrictions  686 ;  Berry  v.  Folkes,  60  Miss.  576,  609. 

323 


IMPLIED  POWERS  OF  EACH  PARTNER.  §  32 ^. 

ordinary  way,  an  extraordinary  emergency  rendering  it 
necessary  to  have  money  enough  to  save  it  from  ruin  will 
not  create  the  power  or  render  the  firm  liable  for  a  loan  ;^ 
nor,  vice  versa,  that  a  firm  is  rich  and  does  not  need  money 
does  not  deprive  a  partner  of  the  borrowing  power.^ 

Ill  Berry  v.  Folkes,  60  Miss.  576,  two  persons  agreed  to  buy  a 
plantation  on  credit,  manage  it  in  partnership,  use  the  profits  to 
pay  for  it,  and  then  divide  it.  One  of  the  partners  died,  requesting 
by  his  Avill  that  the  partnership  continue.  The  plantation  was 
going  to  waste,  and  the  surviving  partner,  with  the  assent  of  the 
administrator  and  widow,  to  save  it,  made  a  contract  with  H.,  by 
which  II.  was  to  carry  on  and  improve  the  plantation  for  a  salary 
and  was  to  have  one-third  of  it  at  the  end  of  five  years,  or  a  propor- 
tion for  a  less  time.  This  contract  was  held  beyond  the  partner's 
powers  and  not  binding  on  the  heirs,  for,  if  he  could  sell  part,  he 
could  sell  the  whole. 

It  was  held,  however,  in  Seaman  v.  Ascherman,  57  Wis.  547, 
where  a  firm  occupied  part  of  plaintiff's  building  and  the  exigencies 
of  their  business  made  the  whole  of  the  building  necessary  to  carry 
on  the  business  in  the  ordinary  way,  this  fact  made  binding  upon 
the  whole  firm  a  contract  on  its  behalf  by  one  partner  to  take  a 
five  years'  lease  of  the  entire  building.  But  so,  where  a  firm  added 
to  its  business  an  iron  foundry  situated  upon  leasehold  property, 
at  the  expiration  of  the  lease,  one  partner  has  no  implied  power  to 
renew  it  or  to  lease  other  premises;  and,  semble,  it  would  be  the 
same  if  the  premises  burned  down:  one  could  not  contract  to  rebuild 
in.  the  name  of  the  firm  without  authority.' 

Though  necessity  will  not  create  a  non-existent  power,  yet  the 
limits  of  existing  powers  may  expand  or  contract  according  to  ex- 
ceptional emergencies  in  the  exercise  of  a  bona  fide  discretion.'*  Thus 
the  frequent  absence  of  one  partner  may  enlarge  the  ordinary 

1  Hawtayne  v.  Bourne,  7  M.  &  W,  3  Clements  v.  Norris,  8  Ch.  D.  129. 
595;  Ex  parte  Chippendale,  4  DeG.  *  As  in  the  case  of  Woodward  v. 
M.  &  G.  19.  Both  of  these  cases  were  Winship,  12  Pick.  430,  abstracted  in 
of  loans  to  obtain  money  to  pay  ar-  the  next  section.  Arnold  v.  Brown, 
rears  of  wages,  for  which  distress  24  Pick.  89;  35  Am.  Dec.  296;  Ex 
warrants  had  been  obtained  against  parte  Chippendale,  4  DeG.  M.  &G.  19; 
the  property.  Pierce  v.  Jarnagin,  57  Burdon  v.  Barkus,  4  DeG.  F.  &  J.  35, 
Miss.  107,  111.  40,  51. 

2  Pierce  v.  Jarnagin,  supra. 

823 


§321.  CONDUCT  OF  THE  BUSINESS. 

powers  of  tlio  other.'  So  where  partners  iii  the  business  of  bu3'ing 
cattle  in  Texas  and  bringing  them  to  Virginia  to  sell,  found  the 
price  in  Virginia  very  low,  and  could  neither  sell  nor  obtain  past- 
urage. Thereupon  some  of  the  partners  contracted  to  sell  the 
cattle,  guarantying  a  certain  profit  at  the  end  of  the  next  year,  and 
this  was  held,  under  the  circumstances,  not  to  be  in  excess  of  their 
powers.* 

§  321.  Incidental  benefit. —  As  unforeseen  emergencies  do 
not  enlarge  the  usual  scope  of  implied  powers,  so  the  mere 
fact  of  benefit  being  derived  does  not  render  a  contract  in 
the  firm  name  by  one  partner  binding  upon  it. 

Thus,  a  member  of  a  partnership  in  the  manufacture  of  paper, 
who  is  to  sell  the  paper  and  buy  stock,  cannot  bind  the  firm  by  the 
purchase  of  a  bale  of  cloth,  intending  to  exchange  it  for  paper  rags 
at  a  profit  for  common  benefit,  for  which  he  gave  the  firm's  note.* 
So  a  member  of  a  firm  engaged  in  transporting  passengers  by  a  line 
of  stages  cannot  bind  the  firm  by  a  contract  to  convey  a  person  a 
certain  distance  within  a  specified  time.*  Where  the  custom  of  a 
person  cannot  be  retained  in  any  other  way  than  by  allowing 
liis  debt  to  the  firm  to  be  canceled  by  set-off  of  the  debt  of  one  part- 
ner to  him,  this  gives  the  debtor  partner  no  power  so  to  do;*  but 
the  usage  of  country  stores  to  trade  out  debts  may  render  such  con- 
tracts valid;  ^  nor  can  one  partner  guaranty  in  the  firm's  name  for  a 
third  person,  even  though  reasonable  and  convenient  for  the  pur- 
poses of  the  business.' 

Where  a  firm  had  a  mortgage  on  a  crop,  and  a  creditor  of  the 
mortgagee  attached  the  crop,  and  one  of  the  partners  procured  a 
person  to  become  surety  on  a  forthcoming  bond  to  release  the  at- 
tachment, as  being  for  the  firm's  benefit,  this  was  said  not  to  be 
binding  on  the  other  partner.® 

So  where  the  firm  of  K.  &  M.  were  creditors  of  W.,  an  insolvent, 
whose  assignee  had  sold  property  of  the  estate  to  the  plaintiff,  and 
some  of  W.'s  creditors,  denying  the  assignee's  right  to  sell,  had  re- 

1  Lamb  v.  Durrant,  12  Mass.  54,  56;  5  Cotzliausen  v.  Judd,  43  Wis.  213; 
7  Am.  Dec.  31 ;  Forkner  v.  Stuart,  6    28  Am.  Rep,  539. 

Gratt.  197.  ,     6  Eaton  v.  Whitcomb,  17  Vt.   641. 

2  Jordan  v.  Miller,  75  Va.  442.  ^  Brettel  v.  Williams,  4  Exch,  623. 
»  Thomas  V.  Harding,  8  Me.  417.  8  Moore  v.  Stevens,  60  Miss.  809; 
<  Walcott  V.  Canfield,  3  Conn.  194.    Russell  v.  Annable,  109  Mass.  72. 

824 


IMPLIED  POWERS  OF  EACH  PARTNER.  §  321. 

plovierl  the  goods  from  plaintiff,  and  thereupon  M.  promised  plaint- 
iff that  if  he  would  sue  the  replevying  creditors,  instead  of  the 
assignee,  the  firm  of  K.  &  M.,  being  interested  in  sustaining  the 
assignee's  title,  would  indemnify  him  against  loss  if  his  action  failed, 
this  promise  does  not  bind  the  firm.' 

C,  of  B.  &  C,  partners  in  the  lumbering  business,  subscribed  the 
name  of  the  firm  to  stock  for  a  plank  road,  which  would  benefit 
the  firm's  business.  B.  is  of  course  not  bound.''  So  in  a  partnership 
to  build,  equip  and  operate  a  railroad,  no  part  of  the  partners  less 
than  all  can  bind  the  firm  to  purchase  a  competing  road,  however 
desirable.'' 

In  Andrews  v.  Congar  (Supreme  Ct.  U.  S.  1881),  20  Am.  Law 
Reg.  (N.  S.)  328;  Lawyers'  Coop.  Book  26,  page 90,  where  partners 
owned  a  majority  of  the  stock  of  a  corporation,  it  was  held  that  the 
guaranty  by  the  firm  name,  by  one  partner,  of  notes  of  the  corpo- 
ration to  protect  and  improve  the  stock,  bound  the  firm,  because  it 
was  for  the  common  benefit.'  If  this  decision  is  correct,  it  must  be 
not  because  of  the  benefit,  but  because  of  a  right  to  protect  the 
joint  property.  The  report  however  is  meager,  and  does  not  even 
show  whether  the  stock  was  held  jointly  or  individually.  The 
same  ruling  has  just  been  made  in  Morse  v.  Hagenah  (Wis.),  32  N. 
W.  Rep.  634,  where  partners  in  several  kinds  of  trading  and  manu- 
facturing business  took  stock  in  a  woolen  mill,  and  one  partner  was 
held  to  have  power  to  sign  the  firm  name  to  a  note  with  other 
stockholders  to  raise  money  to  run  the  mill.* 

In  Woodward  v.  Winship,  12  Pick.  430  (the  same  firm  of  John 
Winship,  as  in  Winship  v.  Bank  of  U.  S.  5  Pet.  529),  the  business 
being  the  manufacture  of  soap  and  candles  and  exporting  them  to 
foreign  markets,  and  the  purchase  of  a  return  cargo,  Winship,  the 
managing  partner,  shipped  all  he  had  on  hand,  chartering  a  schooner 
for  the  purpose,  and  as  the  cargo  was  not  completed,  he  filled  it  up 
by  a  purchase  of  pork  and  flour,  for  the  price  of  which  the  note 
sued  on  was  given.  It  was  held  proper  to  instruct  the  jury  that 
this  purchase  jJ^iina  facie  was  not  within  the  scope  of  the  business, 
but  that  if  exportation  was  within  the  scope,  and  the  purchase  was 
in  behalf  of  the  firm  and  to   promote  this  principal  object,  and 

1  Macklin  v.  Kerr,  28  Up.  Can.  C.  *  See  Hodges  v.  Ninth  Nat.  Bk.  54 
P.  00.  Md.  406,  where  a  somewhat  similar 

2  Barnard  v.  Lapeer,  6  Mich.  274.       question  was  left  to  the  jury. 
•Roberts'  Appeal,  92  Pa.  St.  407. 

825 


§  322.  CONDUCT  OF  THE  BUSINESS. 

Winsliip  acted  bona  jide  and  iu  the  exercise  of  a  reasonable  discre- 
tion, lie  might  be  considered  as  acting  within  the  scope.  This  is 
not  making  his  discretion  the  standard,  but  permits  an  exercise  of 
discretion  at  peril,  within  the  general  intent  of  the  partnership. 

§32:3.  Restrictions  in  the  articles  not  binding  on  tliird 
persons. —  It  follows,  from  the  fact  that  the  public  judges 
of  the  scope  of  a  partner's  powers  from  the  nature  of  the 
business  and  the  usage  of  similar  occupations,  and  the  acts 
and  habits  of  the  firm,  that  restrictions  contained  in  the 
articles  or  partnership  contract  limiting  the  powers  that  are 
incident  to  the  occupation  or  trade  do  not  affect  the  public, 
who  are  not  made  aware  of  them.^  This  is  not  inconsistent 
with  the  rule  that  one  dealing  with  a  special  agent  must 

iCox  V.  Hickman,  8  H.  C.  L.  304;  335;  Davis  v.  Richardson,  45  Miss. 
U.  S.  Bank  v.  Binuey,  5  Mason,  176;  499,  507;  Prince  v.  Crawford,  50  id. 
Wiuship  V.  Bank  of  U.  S.  5  Pet.  529;  344;  Bloom  v.  Helm,  53  id.  21 ;  Pierce 
Kimbro  v.  Bullitt,  22  How.  25G,  v.  Jarnagin,  57  id.  107,  111;  Lynchu. 
266;  Micliigan  Ins.  Bank  v.  Eldred,  Thompson,  61  id.  354;  Cargill  v. 
9  Wall.  544;  Andrews  v.  Congar  Corby,  15  Mo.  425;  Lomme  v.  Kint- 
(Supreme  Ct.  U.  S.  1881),  20  Am.  zing,  1  Montana,  290;  Bromley  v. 
Law  Reg.  (N.  S.),  328;  S.  C.  Lawyers'  Elliot,  ^38  N.  H.  287,  302;  Elliot  v. 
Coop.  Ed.  Bk.  26,  p.  90;  Humes  v.  Stevens,  38  id.  311;  Corning  v.  Ab- 
O'Bryan,  74  Ala.  64,  84 ;  Guice  v.  bott,  54  id.  469 ;  Wagner  v.  Freschl, 
Thornton,  76  id.  4G6;  Ala.  Fertilizer  56  id.  495;  Bank  of  Rochester  u  Mon- 
Co.  V.  Reynolds,  79  id.  497;  Manville  teath,  1  Den.  402;  43  Am.  Dec.  681; 
V.  Parks,  7  Colorado,  128;  Bradley  Tradesmen's  Bank  v.  Astor,  11 
V.  Camp,  Kirby  (Conn.),  77;  1  Am.  Wend.  87,  90;  Frost  v.  Ha n ford,  1 
Dec.  13;  Everitt  v.  Chapman,  6  E.  D.  Smith,  540;  Nat'l  Union  Bk.  t?. 
Conn.  347 ;  Butler  V.  American  Toy  Landon,  66  Barb.  189  (affd.  on  other 
Co.  46  Conn.  136;  Pursley  v.  Ram-  points,  45  N.  Y.  410);  Sage  u.  Thomas, 
sey,  31  Ga.  403;  Stark  v.  Corey,  45  2  N.  Y.  417,  426-7;  Seybold  v.  Green- 
Ill.  431 ;  Devin  v.  Harris,  3  G.  Greene  wald,  1  Disney,  425;  Benninger  v. 
(Iowa),  186;  Medberry  v.  Soper,  17  Hess,  41  Oh.  St.  64;  Tillier  v.  White- 
Kan.  369 ;  Miller  v.  Hughes,  1  A.  K.  head,  1  Dall.  269;  Churcliman  v. 
,  Mar.  (Ky.)  181;  Bank  of  Ky.  v.  Smith,  6  Whart.  146;  Hoskisson  v. 
Brooking,  2  Litt.  41;  Barker  v.  Mann,  Eliot,  62  Pa.  St.  393;  Nichols  V. 
5  Bush,  672 ;  Williams  v.  Rogers,  14  Cheairs.  4  Sneed,  229 ;  Coons  v.  Ren- 
Bush,  77(i;  White  u  Kearney,  2  La.  ick,  11  Tex.  134,  138;  Waller  v. 
Ann.  63!i ;  Maltby  u.  Northwestern  Va.  Keyes,  6  Vt.  257,  264 ;  Barrett  v.  Rus- 
R.  R.  16  Md.  422;  Brent  v.  Davis,  9  Md.  sell,  45  id.  43 ;  Kelton  v.  Leonard,  54 
217.;  Taylor  v.  Hill,  36  id.  494,  501;  id.  230;  McNeish  v.  Hulless  Oat  Co. 
Stimson  v.  Whitney,  130  Mass.  591;  57  id.  316. 
Perry  r.  Randolph,  6  Sm.   &  Mar. 

326 


IMPLIED  POWERS  OF  EACH  PAPtTNER.  g  32S. 

ascertain  the  extent  of  his  powers,  for  a  partner  is  presum- 
ably a  general  agent  for  all  the  legitimate  purposes  of  the  firm, 
and  his  powers  are  almost  never  enumerated  in  the  articles, 
and  arise  from  the  relation  of  partner  and  the  general  prin- 
€iples  of  the  commercial  law,  and  not  from  any  special 
grant. 

§  323.  unless  known.  — If  restrictions  or  limitations 

on  the  powers  of  the  partners,  or  of  some  or  one  of  them, 
are  known  to  a  person,  his  attempt  to  deal  with  a  partner 
in  violation  thereof  would  be  a  fraud  upon  or  an  invasion  of 
the  rights  of  the  others,  and  he  will  be  deemed  to  have 
treated  with  such  partner  in  his  individual  capacity,  and 
■cannot  look  to  the  partnership,  although  it  received  the 
benefit  of  such  dealing.^ 

For  example,  the  restrictions  may  be  on  the  power  of  all 
but  one  to  make  or  indorse  notes  and  bills;  a  person  know- 
ing this  is  bound,'^  even  though  it  be  in  renewal.^  Or  the  re- 
strictions may  be  upon  the  right  to  dispose  of  property;  a 
buyer  knowing  this  gets  no  title  in  violation  of  it;  ^  or  if  it 

lAlderson   v.  Pope,  1   Camp,  404;  490;  Hastings  v.  Hopkinson,  28  Vt. 

Ex  parte  B-oldsworih,  1  M.  D.  &  D.  108;    Chapman  v.  Devereux,   82  id. 

475;  N.  Y.  F.  Ins.   Co.   v.  Bennett,  5  616;  9  Am.   Law  Reg.    (O.   S.)  419; 

•Conn.  597,  598 ;  Urquhart  v.  Powell,  Coleman  v.  Bellhouse,  9  Up.  Can.  C. 

54  Ga.  29;  Radcliffe  v.  Varnev,  55  id.  P.  31.     And  see  further  §§  825,  326. 

427;  Knox  v.  Bufifington,    50  Iowa,  Where  a  client  knows  that  a  law 

320;  Williams  v.   Barnett,    10  Kan.  partnership  is  formed  to  do    busi- 

455;  Combs  V.  Boswell,  1  Dana,  473;  ness    in  a  certain   city,    he   cannot 

Brent  u  Davis,  9    Md.  217;  Bailey  u.  hold   the   firm   on   a   receipt    in   its 

Clark,    6    Pick.   372;    Boardman   v.  name  by  one  partner  of  a  note  for 

Gore,  15  Mass.  339 ;  Wilson  v.  Rich-  collection  elsewhere.  Brent  v.  Davis, 

ards,  28  Minn.  337;  Langan  v.  Hew-  9  Md.  217. 

ett,  21  Miss.    122;  Pollock    v.    Will-  2  Cargill  u.  Corby,  15Mo.  425;  Wil- 

iams,  42  id.  88;  Cargill  v.  Corby,  15  son  v.  Richards,  28  Minn.  337.     See 

Mo.  425;  Nolan  v.  Lovelock,  1   Mon-  Guice  v.  Thornton.  76  Ala.  466. 

tana,  224;  Dow  v.  Say  ward,  12  N.  H.  3  Wilson  v.  Richards,  supra. 

271,   275;  Bromley  v.  EU'ot,    38  id.  <  Radcliflfe  t;.  Varner,    55  Ga.  427; 

•287,  303;  Ensign  u  Wands,  1  Johns.  Williams   v.    Barnett,  10  Kan.    455; 

Cas.  171 ;  Gram   v.  Cadwell,  5   Cow.  Antliony  v.  Wheatons,  7   R.    I.    490. 

489;  Mason   v.  Partridge,    66  N.    Y.  And  see  Ensign  v.  Wands,  1  Johns. 

633;  Baxter  v.    Clark,    4   Iredell   L.  Cas.  171;  Ciiapman  v.    Devereux,  33 

127 ;  Anthony  v.  Wheatons,  7   R.  I.  Vt.  616 ;  9  Am.  Law  Reg.  (O.  S.)  419, 

327 


§324. 


CONDUCT  OF  THE  BUSINESS. 


be  upon  the  right  to  purchase  necessaries  or  hire  labor,  a 
contract  in  known  violation  thereof  creates  an  individual 
and  not  a  partnership  debt. ^  Or  the  restriction  may  be  a 
limitation  of  the  liability  of  one  partner  within  a  certain 
amount.  Here  a  knowledge  of  the  limitation  must  be  accom- 
panied by  a  knowledge  of  its  violation,  for  in  the  nature  of 
things  notice  of  such  limitation  is  not  a  contract  by  a  cred- 
itor not  to  collect  his  entire  debt.''  The  court  in  subjecting 
the  individual  property  of  partners  may  observe  this  restric- 
tion, even  if  not  known,  by  selling  in  the  order  of  liability,^ 
or  the  purchases  must  be  for  cash.* 

§  324.  proof  of  knowledge. —  As  to  what  is  sufficient 

proof  of  notice  to  or  knowledge  of  such  restriction  on  the 

where   the  restriction   was    against  Ala,   497;    Wiliiams    v.    Rogers,    14 

selling  on  credit,  and  a  custom  tliat  Bush,  776;  Perrj  v.  Randolph,  6  Sm. 

thirty  days'  time  is  the  same  as  cash  &  Mar.  335. 

was  held  void.  3  Kent  v.  Chapman,  18  VV.  Va.  485. 

lUrquhart  v.  Powell,  54  Ga.  29;  <  Johnson  v.  Bernheim,  76  N.  Ca. 

Radcliffe  v.  Varner,  55  id.  427;  Dow  139,  and  s.  C.  Johnston  v.  Bernheim, 

V.    Say  ward,    12    N.    H.    271,    275;  88  id.  339;  Hotchin  v.  Kent,  8  Mich, 


Lynch  v.  Thompson,  61  Miss.  354; 
Miller  v.  Hughes,  1  A.  K.  Mar.  181 ; 
Frost  V.  Hanford,  1  E.  D.  Smith, 
540;  Pollock  v.    Williams,    42  Miss. 


526.  In  the  latter  case  it  was  held 
that  the  reception  of  the  goods  by 
the  guilty  partner,  who  was  man- 
ager, is  not  a  ratification,   because 


88,  where  a  contractor  knew   that    he  could  not  ratify  his  own  wrong, 
one  partner  was  to  furnish  tlie  labor   and  the  other    partners    may  have 


at  his  own  expense. 

2  Butler  V.  American  Toy  Co.  46 
Conn.  136;  Nichols  v.  Cheairs,  4 
Sneed,  229;  Mason  v.  Partridge,  66 
N.  Y.  633;  Lomme  v.  Kintzing,  1 
Montana,     290.      See    Greenwood's 


thought  the  goods  were  paid  for. 
Sir  N.  Lindley,  in  his  admirable 
work  on  Partnership,  p,  332,  sug- 
gests the  ingenious  distinction  tiiat 
notice  of  a  stipulation  between 
partners,   that  one  or  all  shall    not 


Case,  3  DeG.  M.  &  G.  476 ;  The  State  have  a  certain  usual  power,  is  not 
F.  Ins.  Co.,  Meredith's  Case,  1  B.  &  notice  that  they  will  not  be  auswer- 
P,  New  Rep.  510,  But  if  the  agree-  able  for  the  acts  of  a  member  be- 
nient  be  that  a  person  held  out  as  a  yond  these  limits,  but  is  inter  se 
partner  shall  have  no  interest  or  lia-  only ;  and  he  examines  the  Englisli 
bility  of  any  kind,  or  a  limited  lia-  cases  with  reference  to  this,  and 
bility,  he  is  not  a  partner  to  those  finds  their  statements  to  the  con- 
cognizant  thereof,  but  is  to  every  trary  to  be  dicta,  and  that  the  ques- 
one  else.  Phillips  v.  Nash,  47  Ga.  tion  is  still  open.  The  American 
218;  Saufley  u.  Howard,  7  Dana,  367;  cases  above  given,  however,  seem  to 
Ala.   Fertilizer  Co.   v.  Reynolds,  79  exclude  this  distinction. 

328 


IMPLIED  POWERS  OF  EACH  PARTNER.  §  325. 

part  of  the  person  dealing  with  a  partner,  such  proof  may 
be  circumstantial,  as  from  pubhcation  of  the  objects  of  the 
partnershiiD,  its  sign  and  usual  business.^  Thus,  it  has  been 
held  that  one  partner's  having  for  many  years  had  the  ex- 
clusive conduct  of  the  business,  and  that  his  interest  was 
known  to  be  large  and  the  other's  small,  was  evidence,^ 
Though  merely  that  one  partner  usually  signed  the  notes 
and  checks  is  not  sufficient.' 

Information  of  facts  which  should  have  led  a  reasonably 
prudent  and  cautious  man  to  inquire  has  been  said  to  be 
sufficient.^  So,  also,  that  the  partnership,  one  of  a  peculiar 
and  widely  known  class,  based  on  the  principle  of  purchas- 
ing for  cash  only,  as  in  the  case  of  certain  co-operative 
stores  or  protective  unions.* 

If  a  partner  seeks  to  prove  a  restriction  in  the  articles,  he 
must  do  so  by  producing  the  articles  themselves  and  not  by 
the  testimony  of  a  copartner;^  though  creditors  probably 
could  prove  it  independently  of  the  articles,  and  clearly  so 
after  notice  to  produce  thera.^ 

It  has  been  held  that  merely  telling  a  third  person  that 
one  has  ceased  to  be  a  partner,  but  that  his  name  is  to  con- 
tinue for  a  certain  time,  is  not  a  sufficiently  distinct  warn- 
ing or  disclaimer  of  future  contracts  and  debts. ^ 

§  325.  Revocation  of  power  Iby  dissent  of  one  partner; 
certainly  in  a  partnership  of  two  where  each  has  an  eqnal 
voice. —  A  partner  may,  within  certain  limits,  revoke  or  re- 
strict a  copartner's  power  as  to  future  or  executory  con- 

1  Livingston  v.  Roosevelt,  4  Johns.  303.  And  see  Wagner  v.  Freschl,  56 
251 ;     4    Am.    Dec.    273.       Though    id.  495. 

merely  constructive  or  implied  no-  5  chapman  t?.  Devereux,  32  Vt.  616; 

tice,  never  really  brought  to  the  at-  9  Am.   Law  Reg.   (O.  S.)  419.     And 

tention  of    the  third   party,    is   not  see  Skinner  v.    Dayton,    19    Johns, 

sufficient,  it  is  like  actual  notice  of  513;  10  Am.   Dec.  286   (rev.  s.   c.   5 

dissolution.     Devin   v.  Harris,   3  G.  Johns.  Ch.  351). 

Gr.  (Iowa)  186.  ^  Hastings  v.    Hopkinson,    28    Vt. 

2  Anthony  v.  Wheatons,  7  R.  I.  490.  108. 

STilford  v.  Ramsey,  37  Mo.  563,  vjd.  117;  Bogart  u.  Brown,  5  Pick. 
566.  18. 

<  Bromley  v.  Elliot,  38  N.  H.   287,        8  Brown  v.  Leonard,  2  Chit.  120. 

329 


g  325.  CONDUCT  OF  THE  BUSINESS. 

tracts,  or  can  dissent  from  a  particular  contract,  and,  by 
notice  to  the  non-partner,  can  relieve  himself  from  liability  as 
to  it  if  made  in  disregard  of  such  dissent.^  It  may  be  sug- 
gested, however,  that  such  dissent  is  only  possible  of  the 
imi^lied  powers  of  a  partner,  and  not  of  those  given  by  ex- 
press contract  in  the  articles,  as  to  which  the  only  reroca- 
tion  is  by  dissolution. 

The  intention  thus  to  interfere  must  be  clear  and  beyond  rea- 
sonable doubt.*  But  a  notice  by  a  person  that  he  is  not  a  partner 
and  would  not  be  responsible  for  the  debts  is  good  though  he  was 
and  continued  to  be  a  partner,  unless  he  adopts  or  receives  a  bene- 
fit from  the  contract.'  The  fact  that  the  avails  of  a  contract,  for 
example,  a  purchase  of  goods  forbidden  by  one  partner,  came  to 
the  use  of  the  firm,  does  not  necessarily  benefit  the  dissenting 
partner,  for  the  bargain  may  be  a  losing  one  though  the  firm  used 
them,  and  if  he  should  be  compelled  to  pay  for  a  purchase  by 
which  the  firm  is  ruined  because  the  goods  came  into  the  firm,  his 
right  of  disclaimer  would  be  defeated.'*  But  the  fact  of  benefit  re- 
ceived has  been  held  to  bind  the  firm  on  a  sale  for  its  legitimate 
use." 

Where  the  partnership  consists  of  more  than  two  persons 
it  has  been  held  that  on  a  dissent  of  one  a  third  person  acts 

1  Willis  V.   Dysou,   1    Stavk.    164;  7  Colorado,  521.     Contra,  see  Graser 

Galwayr.  Mathew,  10  East,  2(i4;  s.  c.  v.   Stellwagen,    25   N.    Y.    315,    and 

as  Galvvay  v.  Matthew,  1  Camp.  403;  Campbell  v.  Bovven,  49  Ga.  417. 

Rooth  V.  Quiu,  7  Price,  198;  Winnet  2  Tyler  v.   Scott,  45  Vt.  261;  Sea- 

V.  Whitney,  5  Bro.  P.  C.  489;  Anon,  man  v.  Ascherman,  57  Wis.  517,  553. 

V.  Layfield,  1  Salk.  291;  Griawold  v.  See  Cannon   V.  Wildmann,  28  Conn. 

Waddington,    16    Johns.    438,    491;  472,493. 

Yeager  U.Wallace,   57  Pa.  St.  365;  Matthews  v.  Dare,  20  Md.    248; 

Williams  v.   Roberts,   6  Coldw.  493;  Leavitt  v.  Peck,  3  Conn.  124;  8  Am. 

Monroe   v.    Conner,    15    Me.    178;  32  Dec.  157.     See  Brown  v.  Leonard,  2 

Am.  Dec.  148;  Matthews  v.  Dare,  20  Chit.  120,  noticed  under  t^  324. 

Md.    248;    Knox    v.   Buffington,    50  <  Monroe  v.  Conner,  15  Me.  178;  32 

Iowa.  320;  Tyler  v.  Scott,  45  Vt.  201 ;  Am.  Dec.  148.    See  Hotchin  v.  Kent, 

Hastings  v.   Hopkinson,  28   id.  108,  8  Mich.  520,  noticed  under  g  323. 

117;  Leavitt  u.  Peck,  3  Conn.  124;  8  5 Campbell  v.  Bowen,  49  Ga.  417; 

Am.  Dec.  157;  Noyes  v.   N.  Haven,  Johnson  v.  Bernheim,  70  N.  Ca.  139; 

etc.    R.    R.    30  id. *1,  14;   Bowen  v.  s.  c.  as  Johnston  v.  Bernheim,  86  id. 

Clark,  1  Biss.  128,  133;  Bull  u.  Harris,  339.      Contra,  Galvvay  v.  Matthew, 

18  B.  Mon.  195 ;  Wilcox  v.  Jackson,  1  Camp.  402. 

330 


IMPLIED  POWERS  OF  EACH  PARTNER.  §326. 

at  his  peril,  and  cannot  hold  the  dissenting  partner  liable, 
unless  the  liability  arises  from  the  articles  or  nature  of  the 
partnership,  but  that  in  all  matters  within  the  scope  of  the 
business,  the  majority  must  control,  and  the  minority  can- 
not stop  the  business.^ 

§  326.  limit  on  the  right  to  disseut.— The  power 

to  forbid  a  person  to  deal  with  a  copartner  cannot  be  exer- 
cised to  prevent  a  debtor  of  the  firm  paying  his  debt  to  such 
partner,  for  if  so  the  other  partner  or  partners,  by  a  similar 
notice,  could  disable  the  debtor  from  being  able  to  make  a 
payment  or  tender  to  any  one,  and  no  debts  could  be  col- 
lected at  all.'^ 

A  debtor  of  the  firm  has  nothing  to  do  with  quarrels  be- 
tween the  partners,  and  if  relief  is  necessary  between  them 
a  court  of  equity  must  be  applied  to. 

In  Noyes  v.  New  Haven,  etc.  R.  R.  30  Conn.  1,  K,  the  partner 
of  a  firm  engaged  on  a  contract  to  build  a  road,  and  being  the  part- 
ner with  whom  the  defendant  had  generally  dealt,  told  the  de- 
fendant not  to  pay  the  final  estimate  to  his  copartner,  E.,  but  the 
defendant  and  E.  secretly  met,  keeping  watches  out  to  see  that  N. 
did  not  come  upon  them,  arranged  the  amount  of  the  final  estimate, 
and  E.  received  nearly  the  whole  of  it  in  final  settlement,  and  E. 
after  paying  some  debts  kept  the  balance.  In  an  action  for  the 
amount  in  the  name  of  N.  &  E.  the  payment  was  held  valid,  and 
a  promise  by  the  president  of  the  defendant  to  N.  not  to  pay  E. 
was  held  not  to  be  a  binding  promise,  nor  could  it  be  said  that 

1  Johnston  v.  Dutton,  27  Ala.  245;  quire  the  seller  to  sell  on  time;  the 
Nolan  V.  Lovelock,  1  Montana,  224,  court  ruling  that,  in  the  absence  of 
227.  See  §g  431-435.  Both  these  cases  restrictions  in  the  articles,  one  part- 
however,  recognize  the  duty  not  to  ner  cannot  limit  the  exercise  of  the 
make  a  contract  from  which  a  co-  other's  legitimate  powers, 
partner  dissents  if  the  firm  consists  2  Noyes  v.  New  Haven,  etc.  R.  R. 
of  two  only.  In  Johnson  v.  Bern-  30  Conn.  1 ;  Granger  v.  McGilvra, 
helm,  76  N.  Ca.  139,  where  one  part-  24  III.  153;  Steele  v.  First  Nat'l  B'k, 
ner  in  a  firm  of  two  had  power  to  60  111.  23 ;  Carlisle  v.  Niagara  Dock 
purchase  either  for  cash  or  on  time,  Co.  5  Up.  Can.  Q.  B.  (Old  Ser.)  660, 
it  was  held  that  the  other  could  not  where  each  partner  forbade  pay- 
hmit  this  by  notice  forbidding  pur-  ment  to  the  other.  And  see  Cannon 
chases  on  time ;  or,  vice  versa,  if  one  v.  Wildmau,  28  Conn.  472,  493. 
offer  to  buy  for  cash,  he   cannot  re- 

331 


g  327.  CONDUCT  OF  THE  BUSINESS. 

the  transaction  was  a  fraud,  for  E.  may  liave  been  entitled  to  tlie 
whole. 

In  Ayer  v.  Ayer,  41  Yt.  3i6,  one  partner  placed  the  accounts  in 
the  hands  of  an  attorney,  and  absconded.  The  other  partner  notified 
a  debtor  to  pay  no  one  but  himself,  but  the  debtor  paid  the  attor- 
ney; and  the  absconding  partner  approved  it  after  an  action  in  the 
name  of  the  firm  had  been  begun  against  such  debtor.  The  action 
was  sustained;  the  court  holding  that  the  attorney  was  agent  of 
the  firm  and  not  of  one  parLuer,  and  was  accountable  to  either,  and 
was  subject  to  the  control  of  one  as  much  as  of  the  other,  and  the 
partner  had  the  right  to  demand  back  the  accounts,  discharge  the 
attorney  and  do  his  own  collecting,  and  the  notice  not  to  pay  was 
such  discharge,  and  that  the  subsequent  approval  of  the  other  part- 
ner could  not  give  ef&eacy  to  the  attorney's  unauthorized  act. 

In  Wilkins  v.  Pearce,  5  Den.  oil,  a  person  had  indorsed  for  the 
accommodation  of  the  firm,  and  one  partner  had  agreed  in  the  firm 
name  to  indemnify  him,  and  it  was  held  that  the  disssent  of  the 
other  partner  at  the  time  did  not  affect  the  right  to  act  in  defiance 
of  such  dissent.' 

§327.  What  are  tradiiij;  partnerships. —  In  determining 
what  is  the  scope  of  a  business,  a  distinction  is  nearly  uni- 
versal between  what  are  called  trading  and  non-trading  part- 
nerships. Trading  partnerships  are  frequently  also  called 
commercial  or  mercantile  partnerships,  but  these  terms  seem 
to  be  somewliat  too  narrow,  for  among  trading  partnerships, 
as  we  shall  see,  are  included  manufacturing  and  mechanical 
partnerships,  the  test  being  founded,  not  on  the  nature  of 
the  articles  they  deal  in,  but  in  the  character  of  their  deal- 
ings. 

Buying  and  selling  has  been  said  to  be  the  test  of  a  trading 
partnership.^  But  that  a  partnership  is  formed  to  sell  is  no 
test  at  all;  and  it  is  difficult  to  conceive  of  a  partnership  in 
which  purchases  are  not  sometimes  necessary,  and  in  many 
non-trading  firms  constantly  necessary;  thus,  farmers  must 

1  The  case  was  affirmed  but  on  fokd,  J.,  in  Kimbro  v,  Bullitt,  23 
other  grounds  in  Pearce  v.  Wilkins,  How.  256;  Holt  v.  Simmons,  16  Mo. 
2  N.  Y.  400.  App.   97:  Piiikerton  v.  Ross,  33  Up. 

2  Marshall,  C.  J.,  in  Winship  v.  Can.  Q,  B.  508,  514. 
Bank  of  U.  S.  5  Pet.  529,  561 ;  Clif- 

332 


IMPLIED  POWERS  OF  EACH  PARTNER.  §  328. 

constantly  buy  their  seeds,  miners  their  blasts,  lawyers  their 
stationery.  It  should  rather  be  said  that,  if  the  partnership 
contemplates  the  periodical  or  continuous  or  frequent  pur- 
chasing, not  as  incidental  to  an  occupation,  but  for  the 
purpose  of  selling  again  the  thing  purchased,  either  in  its 
original  or  manufactured  state,  it  is  a  trading  partnership, 
otherwise  it  is  not. 

§  328.  For  example,  the  following  have  been  held  to  be 
trading  partnerships  involving  the  power  to  bori^ow  and  sign 
mercantile  paper.  It  will  be  seen  that  they  include  retail 
dealers  as  well  as  large  concerns  and  manufacturers.  Some 
of  the  cases  are  also  of  partnerships  in  occupation,  but  here 
the  cases  are  not  unanimous,  and  each  must  stand  on  its 
peculiar  objects. 

Buying  and  selling  of  cattle;^  of  pork,  hogs  and  meat;'  buying 
and  killing  cattle  for  sale  and  dealing  in  vegetables;^  in  a  country 
store;"  dry  goods."  Parties  casually  met  together  and  agreed  to 
buy  what  goods  they  could  jointly  or  separately,  and  on  reaching 
market  sell  for  joint  benefit;  this  is  a  trading  partnership,  with  a 
right  to  borrow  and  give  notes  and  bills.®  Drugs,  partnership  to  sell.'' 

Manufacturers  for  sale  of  soap  and  candles;*  of  pressed  brick;'  of 
refrigerators  and  saloon  fixtures; '"  of  carriages;  "  of  cooperage  com- 
bined with  farming;  '^  saw-mill,  including  buying  and  selling  of  lum- 
ber; '*  steam  saw-mill  combined  with  farming;  "  merchant  tailors; " 
clothing  and  furnishing ;"  wholesale  lumber  dealers ;"  sugar  refinery." 

1  Smith  V.  Collins,  115  Mass.  388.  12  McGregor  v.  Cleveland,  5  Wend. 

2  Gano  V.  Samuel,  14  Oh.  592.  477  (dictum). 

3  Wagner  v.  Simmons,  61  Ala.  143.  13  Copley  v.  Lawhead,  11  La.  Ann. 

4  Dow  V.  Moore,  47  N.  H.  419.  615. 

.5  Walsh  V.   Lenuon,  98  111.   27;  38  14  Kimbro  v.  Bullitt,  22  How.  256. 

Am.  Rep.  75.  See  Johnston  v.  Dutton,  27  Ala.  245. 

6  Howze  V.  Patterson,  53  Ala.  205 ;  Contra,  partners  in  a  steam  saw-mill 

25  Am.  Rep.  607.  were  also   held  not  to  constitute  a 

■^  Gregg  V.  Fisher,  3  111.  App.  261;  trading  firm,   Lanier  v.    McCabe,  3 

LIndh  V.  Crowley,  29  Kan.  756.  Fla.  32;  48  Am.  Dec.  173. 

sWinship  v.  Bank  of  U.  S.  5  Pet.  15  Ah  Lep  u.  Gong  Choy,  13  Oregon, 

529 ;  Deitz  v.  Regnier,  27  Kan.  94.  205. 

9  Hoskisson  v.  Eliot,  63  Pa.  St.  393.  I6  Palmer  v.  Scott,  68  Ala.  380. 

10  Holt  V.  Simmons,  16  Mo.  App.  97.        i^  Feurt  v.  Brown,  23  Mo.  App.  332. 

11  Cowand  v.  Pulley,  11  La.  Ann.  1.        is  Twibill  v.  Perkins,  8  La.  Ann.  133. 

333 


§  329.  CONDUCT  OF  THE  BUSINESS. 

Pork  packers;'  tannery  and  finisliing-sliop.* 
Whether  wharfigers  and  forwarders  constitute  a  trading  partner- 
ship is  a  question  which  has  been  raised  but  not  decided.' 

§  329.  Non-trading  firms. —  On  the  other  hand  the  follow- 
ing have  heen  held  to  be  non-trading  partnerships.  It  will 
be  noticed  that  they  are  all  partnerships  in  occupation.  All 
of  the  following,  like  the  preceding  cases,  arose  on  questions 
of  the  borrowing  power  and  the  right  to  sign  mercantile 
paper. 

These  partnerships  in  occupations,  however,  which  gener- 
erally  imply  non-trading  concerns,  may  be  so  constituted  as 
to  be  in  reality  mercantile  concerns.  This  has  several  times 
been  ruled  in  the  case  of  mining  firms.* 

Attorneijs  or  solicitors  do  not  constitute  a  trading  firm,  and  one 
has  no  implied  authority  to  bind  the  firm  by  note.* 

Brokers,  who  merely  negotiate  contracts  for  others,  relative  to 
property  not  in  their  custody.* 

Contractors  to  build  a  road  are  not.' 

Farming  or  planting  partnerships  are  non-commercial  ones,  and 
the  members  have  no  implied  power  to  sign  negotiable  paper.* 

1  Benninger  v.  Hess,  41  Oh.  St.  64.  Am.    Rep.   733 ;  Smith   v.   Sloan,   37 

2Stimson   v.  Whitney,    130  Mass.  Wis.  285;  19  Am.   Rep.  757;  Work- 

591.     Contra,   Newell    v.   Smith,  23  man  v.  McKinstry,  21  Up.  Can.  Q.  B. 

Ga.  110  (dictum).  623,    625;  Wilson  v.   Brown,  6  Ont. 

3  Roth  V.  Colvin,  32  Vt.   125,  132;  App.  411. 

Van  Brunt  v.  Mather,  43  Iowa,  503.  6  First  Natl.  Bk.  v.  Snyder,  10  Mo. 

^Thicknesse  v.  Bromilow,  2  Cr.  &  App.  211. 

J.  425;  Channell,   B.,  in  Brown  v.  ^McCord  v.  Field.  27  Up.  Can.  C. 

Kidger,  3  H.  &  N.  858,  859;  Decker  P.    391.     See  Gavin   v.   Walker,    14 

V.  Howell,  42Cal.  636.  Lea  (Tenn.),  643;  and  Roberts'  Ap- 

5  Levy  V.    Pyne,    Car.    &  M.   453 ;  peal,  92  Pa.  St.  407. 

Harman  u    Johnson,  2  E.  «fe  B.  61  8  Greenslade  v.  Dower,  7   B.  &  C. 

(rev.  s.  C.  3  Car.  &  K.  272);  Garland  635;  1  Man.   &  Ry.   640;    Brown  v. 

V.  Jacomb,  L.  R.  8  Ex.  218 ;  Hedley  u  Byers,  16  M.  &  W.   252;  Kimbro  v. 

Bainbridge,   3  Q.    B.  316;  Forster  v.  Bullitt,  22  How.  256,  267;  McCrary 

Mackreth,  L.  R.  2  Ex.   163 ;    Friend  v.   Slaughter,  58  Ala.   230 ;  Ulery  v. 

V.  Duryee,  17  Fla.   Ill;  35  Am.  Rep.  Ginrich,   57  111.  531;  Davis  v.  Rich- 

89;    Miller    v.    Hines,    15  Ga.    197;  ardson,  45  Miss.  499,  507;  Prince  v. 

Breckinridge  v.  Shrieve,  4  Dana,  375 ;  Crawford,  50  id.  344 ;  Hunt  v,  Chapin, 

Marsh  v.  Gold,  2  Pick.   285;  Pooley  6  Lans.  139;  Pooley  v.  Whitmore,  10 

V.  Whitmore,  10  Heisk.    629,  636;  27  Ileisk.  629,  636;  27  Am.  Rep.  733. 

334 


IMPLIED  POWERS  OF  EACH  PARTNER. 


§329. 


Mining  or  quarrijing  partnerships  are  not  in  a  trading  business, 
and  a  partner  has  prima  facie  no  authority  to  bind  the  concern  on 
mercantile  paper.' 

Livery-stahle} 

Potter II  tvare  manufacturers  cannot  make  notes.' 

Printinrj  establishment.* 

Be<d  estate,  insurance  and  collecting.* 

Single  enterprise.  Generally,  in  a  partnership  in  a  single  enter- 
prise, one  partner  has  no  power  to  make  notes.* 

So  of  stevedores.'' 

Tavern-keepers.^ 

Theater.     Partnership  to  conduct,  is  a  non-trading  firm.' 

Threshing  machine.     Partners  in  are  non-trading.'" 

Some  cases  seem  to  ignore  the  difference  between  trading  and 
non-trading  partnerships,  and  adopt  the  single  test  of  scope  of  the 
business.  In  Hoskisson  v.  Eliot,  62  Pa.  St.  393,  the  managing 
partner  of  a  firm  in  the  business  of  making  pressed  brick  borrowed 
money  on  the  firm's  note.     The  court  held  that  no  distinction  was 


1  Dickinson  v.  Valpy,  10  B.  &  C. 
128;  Brown  v.  Kidger,  3  H.  &  N. 
853;  Skillman  v.  Lachman,  23  Cal. 
199;  Jones  v.  Clark,  42  id.  180; 
Decker  v.  Howell,  42  id.  636;  Charles 
V.  Eshelman,  5  Colorado,  107;  Man- 
ville  V.  Parks,  7  id.  128;  Higgins  v. 
Armstrong  (Col.  1886),  10  Pac.  Rep. 
232;  Judge  v.  Braswell,  13  Bush,  67; 
26  Am.  Rep.  185;  Shaw  v.  McGreg- 
ory,  105  Mass.  96,  102,  a  quarrying 
firm ;  Pooley  v.  Whitmore,  10  Heisk. 
629,  636 ;  27  Am.  Rep.  733. 

2  Hickman  v.  Kunkle,  27  Mo.  401, 
404  (overruled  on  other  points  by 
Deardorf  v.  Thacher,  78  id.  128); 
Lev:  V.  Latham,  15  Neb.  509;  48  Am. 
Rep.  361. 

3  Bradley  v.  Linn,  19  111.  App.  323. 
*Bays    V.    Conner,    105    Ind.    415. 

Contra,  Porter  v.  White,  39  Md.  613. 
5  Deardorf  r.  Thacher,  78  Mo.  128; 
47  Am.  Rep.  95.  In  Freeman  v. 
Carpenter,  17  Wis.  126,  a  partnership 
"  in  the  general  business    of    land 


agents,  money  and  commission  brok- 
ers," where  the  articles  provided  for 
paying  interest  on  any  excess  of  the 
agreed  cash  capital  furnished  by  one 
partner,  and  securities  for  money 
were  to  be  approved  by  all,  and  no 
funds  were  to  be  drawn  out,  unless 
there  is  sufficient  to  meet  liabilities, 
these  provisions  were  held  to  show 
more  than  a  mere  brokerage  busi- 
ness, but  that  the  facts  of  funds,  a 
cash  capital  and  loans  of  money  im- 
ply a  power  in  each  to  borrow  on  the 
credit  of  the  firm,  especially  as  the 
business  of  making  loans  may  fre- 
quently require  a  borrowing. 

6  Gray  v.  Ward,  18  111.  32;  Bentley 
V.  White,  3  B.  Mon.  263;  38  Am,  Dec. 
185. 

■^  Benedict  v.  Thompson,  33  La. 
Ann.  196. 

8  Cocke  V.  Branch  Bank,  3  Ala.  175. 

9  Pease  v.  Cole,  53  Conn.  53. 

10  Horn  v.  Newton  City  Bank,  32 
Kan.  518. 


335 


g  329.  CONDUCT  OF  THE  BUSINESS. 

to  bo  made  between  mechanical,  manufacturing  and  commercial 
partnerships,  and  the  necessity  for  borrowing  may  be  as  great  in 
the  former  as  in  the  latter.  In  this  case  the  jury  found  that  bor- 
rowing was  within  the  scope  of  the  bnsiness,  and  moreover,  there 
was  evidence  of  a  usage  of  the  firm  to  borrow,  known  to  the  other 

partners. 

336 


CHAPTER  VL 

PARTICULAR  POWERS  BEFORE  DISSOLUTION. 

Following  are  specific  applications  of  the  foregoing  prin- 
ciples, and  an  alphabetical  enumeration  of  the  most  fre- 
quently occurring  examples  in  which  it  is  sought  to  invoke 
an  implied  power  in  an  individual  partner  to  bind  the  rest. 
Powers  after  dissokition  will  be  hereafter  considered. 

^  330.  Accounts. —  A  statement  by  or  in  the  handwriting 
of  one  partner,  made  during  the  existence  of  the  partnership, 
is  competent  against  the  other  as  to  the  correctness  of  the 
balance,  as  being  an  account  stated  by  the  firm.^  And  so  of. 
his  admission  that  a  debt  once  due  to  the  firm  has  been 
paid.-  So  an  admission  by  one  partner  of  an  amount  due  is 
competent  against  the  firm.^ 

§  331.  Admissions. —  The  competency  of  an  admission  or 
declaration  of  a  person  to  prove  his  partnership  with  an- 
other, or  to  prove  that  a  transaction  in  his  name  was  on 
account  of  his  firm,  will  be  elsewhere  considered.  But  con- 
ceding or  having  proved  aUuncle  the  existence  of  the  part- 
nership, the  competency  of  the  admissions  of  one  member 
as  evidence  against  the  firm  is  founded  on  the  agency  of  a 
partner  and  may  be  therefore  treated  here. 

It  is  well  settled  that  the  acts,  admissions  or  declarations 
of  a  partner  during  the  existence  of  the  partnership,  while 
engaged  in  transacting  its  business,  or  relating  to  matters 
within  the  scope  of  the  partnership,  are  evidence  against  the 
firm.* 

1  Ferguson  v.  Fyffe,  8  CI.  &  Fin,  3  Gulick    v.    Gulick,   14  N.    J.    L. 

121;  Burgan  v.  Lyell,  2  Mich.    103;  578;  Phillips  v.  Purinton,  15  Me.  425; 

55    Am.    Dec.    53;    Cunningham  v.  Wickham  v.   Wickhara,  3  K.  «S;  J. 

Sublette,  4  Mo.  224;  Cady  v.   Kyle,  491. 

47  id.  346.  4  Wood  v.  Braddick,  1  Taunt.  104; 

2Mutison   V.  Wickwire,    21    Conn.  Tlnvaites  t\  Rich»nison,  1  Peake,  23 

513.  flO];  Nicholla  v,  Dowding,  1  Stark. 
Vol.  1  —  23                            837 


S^331. 


CONDUCT  OF  THE  BUSINESS. 


For  example:  Declarations  of  the  partners  that  their  men  were 
to  be  paid  for  the  time  they  were  idle  if  they  remained  with  the 
firm  are  competent/ 

An  admission  of  one  partner  that  the  firm  could  pay  in  full, 
where  the  other  partners  by  misrepresenting  its  condition  had 
procured  a  settlement  of  thirty-three  cents  on  the  dollar,  is  compe- 
tent in  impeachnient  of  the  release.* 

An  admission  by  a  partner  that  an  agent  who  signed  the  firm 
name  to  a  note  was  authorized  to  do  so  is  good  evidence,  even 
though  one  partner  could  not  have  subsequently  ratified  such 
signing  if  not  authorized.^ 

A  person  about  to  buy  a  partnership  note,  and  on  inquiry  being 
told  by  a  partner  that  it  would  be  paid,  can  use  such  declaration  to 
prevent  the  partners  defending  on  the  ground  that  it  was  given  to 
pay  a  purchase  made  on  misrepresentations.'' 

Where  partners  had  collected  insurance  money  by  fraudulent 


81 ;  Sangster  v.  Mazarredo,  t  id.  161 ; 
Wright  V.  Court,  2  C.  «fe  P.  233; 
Wickluim  V.  Wickham,  2  K.  &  J. 
478,491;  Rapp  u.  Latham.  2  B.  & 
Aid.  795 ;  Corps  V.  Robinson,  2  Wash. 
C.  C.  388 ;  Fail  v.  McArthur,  31  Ala. 
26;  Smitha  v.  Cureton,  31  id.  652; 
Jemison  v.  Minor,  34  id.  33;  Talbot 
V.  Wilkins,  31  Ark.  411;  Miinson  v. 
Wickwire,  21  Conn.  513;  McCutcheu 
V.  Banston,  2  Ga.  244;  Dennis  v.  Ray, 
9  id.  449;  Clayton  v.  Thompson,  13 
id.  206;  Drumrighty.  Philpot,  16  id. 
424;  60  Am.  Dec.  738;  Kaskaskia 
Bridge  Co.  v.  Sliannon,  6  111.  15; 
Hurd  V.  Haggerty,  24  111.  171 ;  Boor 
u.  Lowrey,  103  Ind.  468;  First  Nat'l 
Bk.  V.  Carpenter,  34  Iowa,  433; 
Wiley  V.  Griswold,  41  id.  375;  Spears 
V.  Toland,  1  A.  K.  Mar.  203 ;  Boyce 
V.  Watson,  3  J.  J.  Mar.  498;  Phillips 
V.  Purinton,  15  Me.  425;  Gilmore  v. 
Patterson,  36  id.  544;  Fickett  v. 
Swift,  41  id.  65;  Doremus  v.  McCor- 
mick.  7  Gill,  49;  Harryman  v.  Rob- 
ens,  53  Md.  64,  77;  20  Am.  Law  Reg, 
(N.   S.)   373;  Odiorne  v.   Maxcy,  15 


Mass.  39;  Collett  v.  Smith  (Ulass.), 
10  N.  E.  Rep.  173;  Burgan  v.  Lyell, 
2  Mich.  103;  55  Am.  Dec.  53;  Faler 
V.  Jordan,  44  Miss.  283;  Cunningham 
V.  Sublette,  4  Mo.  224;  Cady  v.  Kyle, 
47  Mo.  316 ;  Henslee  v.  Cannefex,  49 
id.  295;  McCann  v.  McDonald,  7 
Neb.  305;  Jones  v.  O'Farrel,  1  Nev. 
354;  Webster  v.  Stearns,  44  N.  H. 
498;  Gulick  v.  Gulick,  14  N.  J.  L. 
578;  Ruck  man  v.  Decker,  23  N.  J. 
Eq.  283  (reversal  in  28  id.  614.  is  on 
other  grounds);  Hoboken  Bank  v. 
Beckman,  38  N.  J.  Eq.  83  (affd.  37 
id.  331);  Fogerty  v.  Jordan,  2  Robt. 
(N.  Y.)  319;  Hilton  v.  McDowell,  87 
N.  Ca.  364;  Allen  v.  Owens,  2  Spears 
(S.  Ca.),  170;  Fisk  v.  Copeland,  1 
Overton  (Tenn,),  383;  Adams  v. 
Brownson,  1  Tyler  (Vt.).  453;  West- 
ern Assur.  Co.  V.  Towle,  65  Wis. 
247. 

1  Wiley  V.  Griswold,  41  Iowa,  375. 

2  Doremus  V.   McCormick,  7  Gill, 
49. 

'Odiorne  v.  Maxcy,  15  Mass.  39. 
<  Henslee  v.  Cannefex,  49  Mo.  295. 


S38 


PARTICULAR  POWERS  BEFORE  DISSOLUTION.         §  332. 

proofs  of  loss,  and  an  action  to  recover  it  again  was  brought  by  the 
insurer,  admission  of  a  partner  that  he  had  set  the  property  on  fire 
is  competent.'     . 

§  332.  And  it  makes  no  difference  that  the  declarant  is 
a  dormant  partner;  ^  and  the  fact  that  the  admission  or 
declaration,  if  within  the  scope  of  the  business,  was  honestly 
or  dishonestly  intended,  or  in  hostility  to  his  copartner  or 
not,  goes  to  its  credibility  and  not  to  its  competency.' 

But  admissions  or  declarations  not  in  the  scope  of  the 
business,  or  relating  to  matters  outside  of  the  scope,  are  not 
competent  either  as  to  such  matters  or  to  bring  them  within 
the  partnership  business.* 

In  Boor  v.  Lowrey,  103  Ind.  468,  two  physicians  were  employed 
to  treat  a  patient.  In  an  action  by  the  patient  for  malpractice, 
opinions  of  one,  made  after  the  conclusion  of  the  employment,  in 
regard  to  the  propriety  of  the  treatment,  are  not  competent  against 

1  Western  Assur.  Co.  v.  Towle,  65  6  111.  15 ;  Weed  v.  Kellogg,  6  McLean, 

Wis.  247.  The  admission  may  be  made  44.    See  Shepard  v.  Ward,  8  Wend. 

in  the  answer  of  one  partner  in  chan-  542. 

eery.     Hutchins  v.  Childress,  4  Stew.  3  Webster  v.  Stearns,  44  N.  H.  498 ; 

&  Por.  34;  Dennis  v.  Ray,  9  Ga.  449 ;  Western   Assur.    Co.    v.    Towle.    65 

Clayton  V.   Thompson,    19    id.    206;  Wis.    247.     The  mere  order  of  evi- 

Williams  v.   Hodgson,  2  Hai'.  &  J.  dence  is  immaterial  provided  the  ex- 

474,    477;    Chapin    v.    Coleman,    11  istence  of  the  partnership  is  proved. 

Pick.  331.     But  the  others  must  be  Its    proof  after  the  admission  has 

alive  and  able  to  contradict  it.  Parker  gone    in    cures    the    error.     Lea  v. 

V.  Morrell,  2  Ph.  453;  Dale  v.  Hamil-  Guice,  13  Sm.  &  Mar.  656;  Fogerty 

ton,  5  Hare,  369,  3D3.    And  unless  the  v.  Jordan,  2  Robt.  (N.  Y.)  319.     And 

complainant  stands  in  the  shoes  of  the  preliminaiy  evidence  of  the  ex- 

the  declaraut,  and  the  declaration  is  istence  of  the  partnership  is  within 

not  against  the  firm  but  against  the  the  discretion  of  the  judge,  and,  like 

other  partner,  as  where  a  judgment  matters  of  voir  dire,  is  not  subject  to 

creditor  of  one  partner  files  a  bill  to  review.     Hilton  v.  McDowell,  87  N. 

i-each  the  debtor's  interest  in  the  firm,  Ca.  364. 

and  the  debtor's  answer  claims  that  a  ^  Boor  v.    Lowrey,    103  Ind.   468; 

large  balance  is  coming  to  him  from  Stockton  v.  Johnson,  6  B.  Mon.  408; 

the  firm,  this  is  not  evidence  against  Wells  v.  Turner,  16  Md.  133;  Hefl- 

his  copartner,  for  it  is  his  own  favor,  ron    v.     Hanaford,    40     Mich.     305 ; 

Lewis  V.  Allen.  17  Ga.  300.     Or  in  a  Jones    v.     O'Farrel,     1     Nev.     354; 
garnishee  process,  Anderson  v.  Wan-   McLeod  v.    Lee,  17  id.  103 ;  McLeod 

zer,  5  How.  (Miss.)  587.  v.  Bullard,  84  N.  Ca.  515;  Oakley  tt. 

'ELaskaskia  Bridge  Co.  v.  Shannon,  Aspinwall,  2  Sandf.  7. 

339 


§  383.  CONDUCT  OF  THE  BUSINESS. 

the  other.  The  report  is  not  clear  as  to  whether  the  defendants 
were  general  partners  or  only  in  this  one  case.  And  an  admission 
by  a  partner  is  not  evidence  to  establish  the  extent  of  his  own 
powers,'  or  to  prove  that  he  was  partner  of  another.* 

§333.  As  agents  of  others. —  If  partners  are  appointed 
the  agents  of  a  person  or  employed  for  a  certain  business 
the  question  arises  whether  an  execution  by  a  single  one  is 
sufficient.  If  the  power  is  granted  to  them  as  individuals 
its  exercise  must  be  by  the  concurrent  act  of  all.  But  where 
the  power  or  agency  is  within  the  scope  of  the  ordinary 
business  of  the  firm,  an  act  of  a  single  partner  in  executing 
it  is  an  act  in  the  management  of  the  general  business  of 
the  firm  and  in  its  behalf,  and  binds  both  the  firm  and  the 
principal.  A  joint  exercise  is  not  necessary,  but  each  can 
act  in  the  name  of  and  with  the  powers  of  all. 

Thus  in  a  firm  of  insurance  agents  each  can  bind  the  company 
within  their  powers,  the  same  as  the  firm,  as  by  signing  instru- 
ments, making  oral  insurances  or  otherwise.' 

So  if  a  firm  of  attorneys  employed  to  litigate  a  claim  is  au- 
thorized to  compromise  it,  either  may  exercise  the  power  even  after 
dissolution.*  And  so,  though  the  letter  of  instructions  be  ad- 
dressed to  but  one  of  the  firm  (of  attorneys)  and  the  other  receives 
and  acts  upon  it,  the  principal  is  bound.*  So  if  corporate  shares 
are  assigned  to  two  copartners,  with  a  power  to  both  to  transfer 
them  on  the  books  of  the  company,  and  by  a  bj^aw  shares  are 
transferable  on\y  at  the  office  by  the  holder  personally,  a  demand 
for  transfer  by  one  partner  for  both  is  sufficient.^ 

But  where  a  deed  of  trust  was  made  providing  that,  on  the 
trustee's  ceasing  to  act,  B.  D.  B.  and  J.  T.  P.,  partners  under  the 

>  Ex  parte  Agace,  2  Cox,  313.  <  Jeffries  v.  Mat.  L.  Ins.  Co.  110  U. 

2  See  §  114(3.  S.  305.     In  this  case  the  employment 

3  Kennebec  Co.  v.  Augusta  Bank-  to  litigate  was  on  a  share  of  pro- 
ing  Co.  6  Gray,  204;  Purinton  v.  ceeds  and  hence  like  a  power 
Ins.  Co.  72  Me.  23;  Gordon  v.  coupled  with  an  interest,  but  I  do 
Buchanan,  5  Yerg.  71.  And  see  not  think  that  affects  the  princi- 
Newman  v.  Springfield  F.  &  M.  Ins.  pie. 

Co.   17  Minn.    123,  where,  however,       5  Beck  v.  Martin,  2  McMull.  (S.  Ca.) 
one  partner  alone  had  the  certificate    260. 

of    agency,    but    the  company  had       6 Sargent    v.   Franklin   Ins.   Co.  8 
recognized  both.  Pick.  90. 

340 


PARTICULAR  POWERS  BEFORE  DISSOLUTION.        §  liU. 

name  of  B.  &  P.,  should  appoint  a  successor,  an  appointment  of  a 
successor  by  one  partner  in  the  firm  name  is  not  valid,  for  a  part- 
ner is  not  an  agent  of  the  firm,  except  in  its  ordinary  business,  and 
the  poAver  here  was  to  them  as  individuals  and  both  must  concur 
in  the  act/ 

That  a  partner  in  one  firm  is  also  a  member  of  another  firm  does 
not  make  the  latter  agent  of  the  former  or  its  acts  binding  on  the 
former.     This  is  well  illustrated  by  the  case  of  Wright  v.  Ames.'' 

B.  &  C.  were  warehousemen,  and  C.  had  wheat,  his  individual 
property,  stored  with  them,  and  a  firm  composed  of  C,  D.  and 
E.,  doing  business  under  the  name  of  D.  &  E.,  also  had  wheat 
stored  with  them.  C.  sold  his  own  wheat  to  the  defendants,  but 
surreptitiously  removed  and  converted  part  of  it,  in  consequence 
whereof  B.,  his  copartner  in  the  warehouse,  delivered  to  defendants 
some  of  the  wheat  of  the  firm  of  D.  &  E.,  thus,  in  efiect,  payiug 
C.'s  private  debt  with  their  property.  It  was  held  that  D.  &  E.'s 
title  was  not  divested  and  they  could  recover  it  from  the  defendants. 

§  334.  Agents  and  employees  of  the  firm. —  Each  partner 
in  the  prosecution  of  the  business  has  implied  power  to 
employ  labor  or  engage  services,  such  as  are  necessary  to 
conduct  the  ordinary  business  of  joint  enterprise.'  The 
principle  that  an  agent  cannot  delegate  his  powers  does  not 
apply  in  so  far  as  the  partner  acts  as  partner,  because  he  is 
a  principal,  although  in  so  far  as  powers  are  in  excess  of 
the  usual  powers  of  a  partner,  and  are  derived  from  some 
special  delegation  or  appointment  from  the  firm,  it  doubt- 
less would  apply. 

Thus,  each  member  of  a  mining  partnership  has  authority  to 
employ  laborers.^  So  of  a  partnership  to  cut  and  sell  timber  —  per- 
sons employed  by  an  active  partner  to  carry  on  the  business  can 
recover  from  the  firm.^  So  if  land  or  goods  be  taken  by  a  partner- 
ship for  a  debt,  one  partner  can  employ  a  broker  or  agent  to  obtain 

iCummings  V.  Parish,  39  Miss.  412.  4  Nolan  v.  Lovelock,    1   Montana, 

22  Keyes,  231;  4  Abb.  App.  Dec.  224;  Burgan  v.  Lyell,  2  Mich.  102;  55 

644.  Am.  Dec.  53;  Potter  v.  Moses,  1  R.  I. 

3  Beckham  v.  Drake,  9  M.  &  W.  79 ;  430,  441. 

Cariey  V.  Jenkins,  46  Vt.  721;  Mead  5  Mead  v.   Shepard,  54  Barb.  474; 

V.  Shepard,  54  Barb.  474;  Smith  v.  Coons  u.  Renick,  11  Tex.  134,  138;  60 

Cissou,  1  Colorado,  29.  Am.  Dec.  230, 

841 


§  335.  CONDUCT  OF  THE  BUSINESS. 

a  purchaser  for  it.'  One  partner  can  employ  an  attorney  to  ap- 
pear and  represent  the  firm  in  suits.*  Contra,  in  a  mining  partner- 
ship, for  this  is  not  a  necessary  part  of  its  business.' 

A  partner  can  employ  a  person  to  perform  services  to  be  com- 
pensated by  a  division  of  the  proceeds  of  the  employee's  labor,  as 
to  buy  and  ship  cattle  on  a  share  of  the  profits;  but  here  the  other 
partners  sued  the  employee  for  the  proceeds  and  he  claimed  a  part- 
nership;* or  to  furnish  wool  and  oversee  its  manufacture  and  sell.* 

Where  an  iron-foundry  concern,  in  arrears  to  its  workmen  for 
wages,  was  sold  to  the  defendant  partnership,  and  one  of  the  part- 
ners, to  induce  the  men  to  continue  working,  promised  to  pay  them 
the  same  wages  as  before  at  the  end  of  each  week,  and  that  the  ar- 
rears should  be  paid,  one-half  in  the  following  January  and  one- 
half  in  February,  the  p?5omise  was  held  to  be  within  the  scope  of 
the  business  and  the  firm  is  bound  by  it.* 

Where  some  of  the  partners  went  to  California  to  prosecute  the 
mining  with  hands  hired  by  the  firm,  on  a  share  of  the  profits,  and 
they  deserted,  it  was  doubted  whether  those  partners  could  engage 
new  hands  at  wages  instead  of  a  share  of  profits.'  In  Carnes  v. 
White,  15  Gray,  378,  a  member  of  an  insolvent  manufacturing  firm 
which  had  on  hand  unfinished  articles  was  held  authorized,  in 
order  to  finish  them,  to  contract  with  a  person  to  finish  the  articles 
at  his  own  expense  and  sell  them  to  reimburse  himself  his  ad- 
vances.* 

§  335.  An  agent  or  employee  is  equally  accountable  to 
and  subject  to  the  control  of  one  partner  as  much  as  of 

*  Durgin  v.  Somers,  117  Mass.  55;  8  A  partner  may  appoint  and  de- 
Banner  Tobacco  Co.  v.  Jenison,  48  pute  a  clerk  or  agent  to  act  for  the 
Mich.  459.  firm.     Harvey  v,  McAdams,  33  Mich. 

2  Wheatley  V.  Tutt,  4  Kan.  240.  473;   Bank  of  N.  A.  v.  Embury,  21 

'  Charles  v.  Eshelman,  5  Colorado,  How.  Pr.  14,  by  a  sole  resident  part- 

107.  ner  about  to  be  absent.     In  Tillier  v. 

<  Frye  v.  Sanders,  21  Kan.  26;   30  Whitehead,  1  Dall.  2G9,  a  partner  was 

Am.  Rep.  421.  held   to  have  power  to  authorize  a 

f'  Swan  V.  Stedman,  4  Met.  548,  553,  clerk  to  sign  checks,  notes,  etc.,  for 

but  the  powers  of  each  partner  were  the  firm ;    but  in   Emerson  v.    The 

unlimited;  he  could  engage  in  any-  Providence   Hat  Mfg.  Co.    12  Mass. 

thing  that  he  deemed  of  mutual  in-  237,  243,  it  was  doubted  whether  one 

terest.  partner    alone  could   authorize  an- 

•  Wills  r.  Cutler,  61  N.  H.  405.  other  person  to  give  a  note  in   the 
">  Potter  V.  Moses,  1  R.  I.  4;i0,  441.  firm's  name. 

342 


PARTICULAR  POWERS  BEFORE  DISSOLUTION.         §  33b. 

another,  subject  to  the  powers  of  the  majority,  which  are 
elsewhere  considered.  And  where  the  firm  consists  of  two 
partners  only,  each  has  the  power,  in  the  absence  of  dissent 
by  the  other,  to  discharge  a  person  employed  by  the  other.' 

And  so,  if  a  partner  employ  a  clerk  and  pay  bim,  he  is  entitled 
to  reimbursement  wbere  the  other  partner  does  not  dissent  from 
the  employment,  although  he  disapproved.'  But  an  employment 
of  an  incompetent  relative  by  one  partner  without  the  other's 
knowledge  was  held  not  to  bind  the  latter  to  pay  him.'  The  only 
limitation  that  can  be  laid  down  upon  the  power  to  employ  or  dis- 
charge where  the  partners  are  equall}-^  divided,  and  there  is  positive 
dissent,  is  that  those  in  favor  of  things  remaining  as  they  are  must 
control. 

ARBITRATION. 

§  336.  No  power  to  submit  to. —  A  partner  has  no  implied 
power  to  bind  the  firm  by  a  submission  to  arbitration.  This 
falls  within  the  category  of  sealed  instruments,  and  like 
them,  and  especially  like  a  confession  of  judgment,  its 
rationale  is  that  a  partner  ought  not  to  have  the  power  to 
bind  not  only  the  joint  estate  but  also  the  individual  prop- 
erty of  a  copartner,  with  the  additional  reason  that  a  sub- 
mission excludes  resort  to  the  regular  tribunals,  cuts  off  the 
rights  of  appeal  or  error,  and  is  a  delegation  of  power  to 
others.  The  power  of  a  partner  is  of  necessity  dangerously 
broad  and  should  not  be  extended  beyond  what  is  requisite 
to  carry  on  the  business  in  the  ordinary  way,  and  a  power 
to  submit  to  arbitration  is  not  necessary  to  any  business. 
Certainly,  if  a  partner  cannot  enter  an  appearance  for  the 
firm,  or  where  service  upon  one  partner  gives  no  jurisdic- 
tion over  the  copartners,  as  is  so  in  many  states,  there  can  be 
no  power  to  create  a  court  for  them  and  bind  the  firm  by  its 
decision.^ 

1  Ayer  v.  Ayer,    41  Vt.  346 ;  Don-  Stead  v.  Salt,  3  Bing.   101 ;  s.  c.  10 

aldson  u.  "Williams,  1  Cr.  &  M.  343.  Moore,    389;  Karthaus  v.   Ferrer,   1 

2Hollowayu  Turner,  61  Md.  217.  Pet.    222-238;     Hall  v.   Lanniug,    1 

5  Besteu.  His  Creditors,  15  La.  Ann.  Otto,    160,    170;    Fanchon    v.    Bibb 

55.  Furnace  Co.  (Ala.)   2  So.  Rep,  268; 

« Strangford  v.  Green,  2  Mod.  228 :  Jones  v.  Bailey,  5  Cal.  345 ;  Woody 

343 


§330. 


CONDUCT  OF  THE  BUSINESS. 


The  authority  may  be  conferred  by  parol,  and  need  not, 
therefore,  appear  on  the  record.^  Or  a  subsequent  ratifica- 
tion may  cure  the  want  of  authority. ^ 

V.  Pickard,  8  Blackf.  55;  Armstrong  proofof  a  previous  assent  by  the  part- 
V.  Robinson,  5  Gill  &  J.  412;  Buchoz  ner  wlio  had  not  signed  had  not  been 
V.  Grand  jean,    1  Mich.  367;  Backus   offered,  so  that  the  case  virtually  de- 


V.  Coyne,  35  Mich.  5;  Walker  v. 
Bean  (Minn.  1886),  26  N.  W.  Rep. 
232;  Buchanan  v.  Curry,  19  Johns. 
137;  10  Am.  Dec.  200;  McBride  v. 
Hagan,  1  Wend.  320;  Harrington  v. 
Higham,  13  Barb.  060;  S.  C.  15  id. 
524;  Wood  V.  Sheplierd,  2  Palt.  &  H. 


cided  that  assent  need  not  be  shown 
by  the  plaintiffs. 

1  Davis  V.  Berger,  54  Mich.  052.  See 
Wilcox  V.  Singletary,  Wright  (O.), 
420;  and  see  Kartiiaus  v.  Ferrer,  1 
Pet.  222,  231.  That  one  of  the  part- 
ners had  kept  a  ship  insured  for  sev-' 


(Va.)  442 ;  Martin  v.  Thrasher,  40  Vt.    eral  years  by  time  policies  containing 
460.    Contra,  Hallack   v.    March,  25   an  arbitration    clause   without    ob- 
111.  48;  Taylor  v.  Coryell,  12  S.  &  R.    jection,    was    held    evidence  of  au- 
243 ;  Gay  v.  Waltman,  89  Pa.  St.  453 ;    thority  to   submit  to    arbitration   a 
Southard  v.  Steele,  3  Mon,  (Ky.)  435.    claim  for  loss  under  a  like  policy. 
Of   the    above  cases,    the  following   Hamilton  v.    Phoenix    Ins.    Co.    106 
limit  the  want  of  power  to  a  submis-    Mass.  395.     Thus,  if  the  other  part- 
sion  under  seal:  Armstrong  v.  Rob-    ner  liad     previously  read    and  ap- 
inson,  5  Gill  &  J.  412;  Buchanan  r.    proved   the  submission,  and  was  in 
Curry,    19  Johns.   137;  10  Am.  Dec.    the  store  at  the   time  it  was  signed, 
200.     While  the  following  concede    this  is  sufficient  to  bind  both.  Mackay 
this  power,  assigning  as  the  reason   v.  Bloodgood,  9  Johns.  285. 
that  a  seal  is  not  necessary:  Hallack       2  Perhaps  so,   even   when    an   ac- 
V.  March,    25  111.   48 ;  Gay  v.  Walt-   knowledgment  is  required,  provided 
man,   89  Pa.   St.  453.    Southard   v.    the  one  who  executed  acknowledged 
Steele,    3  Mon.   435,  and   Taylor  v.    in  the  name  of  both,  but  not  if  only 
Coryell,  12  S.  &  R.  243,  that  a  sub-    in  his  own  name.    Abbott  v.  Dexter, 
mission,    if    not    sealed,    is    in    the   6  Cush.  108,  110.     All   the    partners 
power  of  each.     But  the  Vermont   joining  in    a  writ  of  error    to  the 
case  puts  it  on  the  ground  that  the    award   is    a  ratification.      Davis  v. 
exigencies  and  convenience  of  busi-    Berger,  54  Mich.  652.     So  receiving 
ness  do  not  require  a  partner  to  pos-   the    avails    of    it     by    the    partner 
Bess  any  such  power,  and   that  the   who  executed  it  is  either  a  ratifica- 
question  of  seal  or  no  seal  is  of  no   tion   by  the  firm,  or  an  accord  and 
consequence.     Martin    v.    Thrasher,    satisfaction.       Buchanan    v.  Curry, 
40  Vt.  460;  Harrington  v.  Higham,    19  Johns.  137;  10  Am.  Dec.  200.  The 
13  Barb.  600;  Stead  v.  Salt,  3  Bing,    presence    and    participation  of  the 
101;    S.    C.    10  Moore,    389.     It   was   other  partner  at  the  hearing  is  an 
held  that  a  partner  had  this  power   assent    (Hallack    v.   March,  25    111. 
in  Wilcox  i;.  Singletary,  Wright  (O.),    48);  but  may   not   be  conclusive,  as 
420 ;  but   in  that  case  the  partners    where  the  other  is  a  foreigner  and 
were  suing  on  the  award,  and  it  was   does  not   understand  what  is  going 
merely  objected  to  by  defendant  that    on.     Martin  v.  Thrasher,  40  Vt.  460. 

844 


PARTICULAR  POWERS  BEFORE  DISSOLUTION.        §  337. 

The  submission,  however,  has  been  held  to  bind  the  one 
that  executed  it,  for  he  promised  on  behalf  of  the  firm,  and 
his  partner's  refusal  is  a  breach  by  him,^  unless  the  defect 
is  want  of  a  statutory  acknowledgment  and  not  want  of 
authority,  since  the  one  who  signed  did  not  agree  to  submit 
by  himself  alone.- 

The  question  refers  not  merely  to  a  formal  submission  to 
arbitration,  but  includes  any  agreement  of  reference  of  a 
dispute  to  a  third  person;  ^  but  a  mere  agreement  by  a  part- 
ner purchasing  logs  to  adopt  the  run  at  the  mill  as  the  meas- 
ure of  quantity  is  not  an  arbitration  and  binds  the  firm.^ 

§  337.  A  surviving  partner  can  submit  to  an  arbitration  with 
tke  administrator  of  the  deceased  partner  as  to  the  state  of  accounts 
between  the  partners.*  But  he  cannot  arbitrate  these  matters  with 
the  widow,  he,  himself  being  also  the  administrator;  for  she  is 
neither  debtor  nor  creditor,  and  he  represents  both,  being  in  a 
double  capacity.*  An  administrator  of  both  partners  can  submit 
to  arbitration  with  a  creditor  of  the  iirm,  and  an  award  ma}'^  be 
against  the  estate  of  the  last  surviving  partner,  and  the  costs  a 
charge  on  the  partnership  funds.' 

An  award  against  the  firm  in  the  firm  name,  not  showing  who 
the  partners  were,  was  held  bad  because  it  might  compel  the  court 
to  try  over  again  the  question  of  who  constituted  the  firm.®  But 
this  objection  would  doubtless  not  hold  in  states  where  partners 
can  be  sued  in  the  firm  name. 

If  all  have  assented  to  the  submis-  Harrington    v.   Higham,    15    Barb. 

sion  a  notice  to  one  is  thereafter  no-  524 ;  Wood  v.    Shepherd,  2  Patt.  & 

tice  to  all.     Haywood  v,  Harmon,  17  H.  (Va.)  443. 

III.  477.     But  as  the  award  must  be  2  Abbott  v.  Dexter,  6  Cush.  108. 

mutual,  it  was  held  that  a  subsequent  3  For  example  see  Backus  v.  Coyne, 

ratification  against  the  will  of  the  35  Mich.  5 ;  Brink  v.    New   Amster- 

other    party    does    not    bind    him.  dam  Ins.  Co.  5  Robt.  (N.  Y.)  104,  as 

Buchoz  V.   Grand  jean,  1  Mich.  367.  to  the  extent  of  loss  under  au  insur- 

Contra,  see    dissenting  opinion    of  ance  policy. 

Dwight,  J.,  in  Becker  v.  Boon,  61  N.  *  Perkins  v.  Hoyt,  35  Mich.  506. 

y.  317.  5  Clanton  v.  Price,  90  N.  Ca.  96. 

1  Jones  V.  Bailey,  5  Cal.  345;  Arm-  CBoynton  v.  Boynton,  10  Vt.  107. 

strong  V.  Robinson,  5  Gill   &   J.  413;  7  Whitney  v.  Cook,  5  Mass.  139. 

Strangford  v.    Green.  2    Mod.  238;  "Wesson  v.  Newton,  10  Cush.  114. 


-'o' 


McBride    v.  Hagan,    1   Wend.    326; 

315 


§338.  CONDUCT  OF  THE  BUSINESS. 

ASSIGN  FOR  CREDITORS. 

§  338.  Cannot  assign  for  creditors. —  The  implied  power  of 
a  partner  over  the  assets  of  the  firm,  which  is  so  great  as  to  en- 
able him  to  convey  the  whole  of  that  part  of  them  intended 
for  disposition,  is  limited  to  a  transfer  in  the  conducting  of 
the  business  of  the  firm,  and  does  not  extend  to  a  transfer 
which  ipso  facto  is  a  dissolution  and  destructive,  as  distin 
guished  from  a  transfer,  which,  like  a  transfer  of  all  assets 
held  for  sale,  may  lead  to  a  dissolution,  though  not  such 
per  se.  The  difference  is  that  the  latter  is  in  the  exercise 
of  a  power  to  preserve,  and  the  former  is  exercising  a  power 
to  destroy,  and  is  not  acting  as  agent,  but  is  appointing 
an  agent  irrevocably,  who  supersedes  the  other  principals. 
Hence  it  is  by  the  weight  of  authority  not  within  the  implied 
power  of  one  partner,  or  of  any  number  less  than  all,  to 
assign  the  entire  effects  of  the  firm  for  the  benefit  of 
creditors,  when  the  other  partners  can  be  consulted  or  are 
within  communicable  distance.  It  is  not  within  the  scope 
of  the  business  to  deprive  all  the  copartners  of  the  posses- 
sion and  control  of  the  partnership  property/ 

1  Bo  wen    v.    Clark,  1    Biss.    128;  511;    Kelly  v.    Baker,   2    Hilt.   531; 

Pearpoint  v.  Graham.  4  Wash.  C.  C.  Deming  v.  Colt,  3  Saudf.  284,  foil,  by 

232,.  234;    Wooklridge  r.  Irving,    23  Hayes  v.  Heyer,  id,   293;    Fisher  u 

Fed.  Rep,  670;  Dunklin  v.  Kimball,  Murray,  1  E.  D.  Smitli.  341;  Wetter 

50   Ala.   251;    Wilcox  v.   Jackson,  7  v.  Schlieper,  4   id.  707;  15   How,  Pr. 

Colorado,  531 ;  Loeb  v.  Pierpoint,  58  268;  Coope  v.  Bowles,  42  Barb.  87;  18 

Iowa,  409;  43  Am,  Rep.  122;  BiiUu,  Abb.  Pr,    442;  Palmer  v.    Myers,  43 

Harris,   18  B.  Mon.  195;  Maughlin  u.  Barb.  509;  20   How.  Pr.    8;  Holland 

Tyler,  47  Md.  545,  550;  Kirby  v.  In-  v.  Drake,  29  Oh.  St,  441;  Ormsbee  v. 

gersoll,  1  Doug.  (Mich.)  477   (affg  s.  Davis,  5  R.  I.  442;  Petition  of  Dan- 

C,  Harr.  Ch.    172);  Stein  v.  La  Dow,  iels,  14  id.  500;  Henderson  u.  Haddon, 

13  Minn.    412;  Hughes  v.  Ellison,  5  13  Rich.  (S.  Ca.)  Eq.   39:3;  Williams 

Mo,  403;  Hook  v.  Stone,  34  id.  329;  v.  Roberts,  6  Cold.  (Tenn.)  493,  497; 

Steinhartu  Fyhrie,  5  Montana,  463;  Dana  v.    Lull,    17    Vt,    391,    393-4; 

Petteef.  Orser,  6  Bosw.  123;  18How.  Brooks    v.    Sullivan,    33  Wis.    444; 

Pr.   442;    Haggerty  v.    Granger,    15  Rumery   v.    McCulloch,   54  id.    565; 

How.  Pr.   243;  Paton  v.  Wright,  15  First  Nat'l  B'k  v.  Hackett,  61  id.  335, 

id.  481;  Welles  v.  March,  30  N.    Y.  343;  Coleman  v.  Darling,  66  id.  155; 

344,  350;  Fish  v.  Miller,  5  Paige,  26;  Cameron   v.  Stevenson,  12  Up.  Can. 

Havens    v.     Hussey,     5    Paige,     80;  C.  P.  389;  Stevenson  v.  Brown,  9  L. 

Hitchcock    V.   St.   John,    Hoff,    Ch.  J,  Chy.  (Up.  Can,)  110;  2  Bell's  Com, 

840 


PARTICULAR  POWERS  BEFORE  DISSOLUTION.        §  330. 

There  are  a  few  decisions,  however,  that  hold  it  to  be  within  the 
implied  power  of  a  partner  to  make  a  general  assignment  for  the 
benefit  of  creditors,  seeming  to  consider  this  as  a  necessary  conse- 
quence of  the  power  of  disposition  of  the  entire  partnership  prop- 
erty.' 

§339.  Ratification. —  Prior  authority  or  subsequent  rati- 
fication of  the  copartners  will  validate  the  act,  as  in  other 
cases  of  acts  beyond  authority.^ 

Thus  in  Osborne  v.  Barge,  29  Fed.  Eep.  725,  B.  &  K.,  part- 
ners, had  agreed  to  assign  for  benefit  of  creditors,  and  had 

(Scotland)    615.     In    Wooldridge  v.  assignment  without  the  assent  of  a 

Irving,  23  Fed.  Rep.  076,  the  power  special    partner,    is    very  doubtful, 

was  denied   though    the    firm   was  See  authorities  collected  in  Bates  on 

hopelessly  insolvent,  the  other  part-  Limited    Partnersiiip,  pp.  189  to  192. 

ner  an  imbecile,  and   the   assigning  In   Whitworth   v.    ^Jfatterson,  6   Lea 

partner  had  a  power  of  attorney  to  (Tenn.),  119,  holding  that  where  there 

transact  all   business.      The  assign-  was    no  actual   partnership,    but  a 

ment  was,    however,    held  void   on  mere    holding  out,  tiie  real  owner 

other  grounds  also.  could  assign  for    creditors,    it  was 

1  Henuessy    v.   Western    Bank,   6  said  that  the  same  rule  would  obtain 

Watts.  &   S.  300;  40  Am.  Dec.   560;  in  case  the  non-assenting    partner 

Eobinsou  v.  Crowder,  4  McCord  (S.  were  a  dormant  one ;  and   the  same 

Ca.),    519, 538,  where,  however,   the  suggestion  was   made  in   Drake  v. 

assignment  was  held  invalid  on  other  Rogers,  6  Mo.  317.     A  single  partner 

grounds;    Gordon    v.    Cannon,     18  may  apply  to  the  court  of  insolvency 

Gratt.  387,  404;  Scruggs  v.  Burruss,  for    proceedings  against   the    firm, 

25  W.  Va.    670;  Lasell  v.  Tucker,  5  Durgin  u.  Coolidge,  3  Allen,  554,  555; 

Sneed  (Tenn.),  33  (regretted  in  Bar-  or  may  sign  for  the  firm  a   petition 

croft  V.  Snodgi-ass,  1   Cold.  430,  440,  for   its   bankruptcy.      Pleasants    v. 

and  is  distinguishable    because  the  Meng,  1  Dall.  380. 
non-assenting   partner  was,  in   fact,       spearpoint  v.  Graham,  4  Wash.  C. 

absent;  and  in  Williams  v.  Roberts,  C.  232;  Dunklin  v.  Kinibali,  50  Ala. 

6  Cold.  493,  497,  it  was  said  that  if  251;  Rumery  v,  McCulloch,  54  Wis. 

one  partner  is  present  the  other  can-  565 ;  Adee  v.    Cornell,  93  N.  Y.  572 

not  assign  without  his  assent).     See  (aff.    25   Hun,   78);  Wiles  v.  March, 

Graves  v.    Hall,    32  Tex.    665,    and  30  N.  Y.  344,  and  cases  cited  in  the 

Donoho  V.  Fish,  58  Tex.  164,  where  next  sentence;    Baldwin  v.    Tynes, 

the  question   whether  a  managing  19   Abb.  Pr.  32;  Ely  v.  Hair,  16  B. 

partner   could    bo  assign   was  said  Mon.  230;  Sheldon  v.  Smitli,  28  Barb, 

not  to  arise  "  because  it  does  not  ap-  593;  Roberts  v.  Shepard,  2  Daly,  110; 

pear   that  he  had  not    authority."  McNutt  v.  Strayhorn,  39  Pa.  St.  269; 

Whether  the  general  partner,  even  Baldwin  v.  Tynes,  19  Abb.  Pr.  32. 
of  a  limited  partnership,  can  make  an 

347 


§  339.  CONDUCT  OF  THE  BUSINESS. 

directed  their  attorney  to  draw  the  papers.  A  day  or  two 
afterwards,  at  8  A.  M.,  B.  executed  the  assignment,  and  at 
10  A.  M.  K.  made  a  chattel  mortgage  to  the  plaintiff  to 
secure  a  partnership  debt.  It  was  held  that  the  assignment 
executed  by  one  partner,  having  been  agreed  upon  by  both, 
was  valid,  and  the  power  to  make  the  mortgage  was  gone.' 
The  ratification  cannot  relate  back  to  interfere  with  interven- 
ing liens. ^  The  failure  of  the  non-assenting  partner  to  re- 
pudiate when  told  of  the  assignment,  and  his  allowing  the 
assignee  to  make  sales  of  the  firm  property,  was  held  not 
to  estop  him  to  resist  replevin  by  the  assignee  to  get  posses- 
sion of  partnership  property  in  his  hands  ' 

If  one  partner  cannot  so  assign  before  dissolution,  a  forti- 
ori he  cannot  after  it.*  But  where  one  partner  sells  his  inter- 
est in  the  firm  to  a  third  person,  the  other  partners  may 
afterwards  assign  for  benefit  of  creditors,  for  the  sale  was  a 
dissolution.  The  retired  partner  has  no  further  authority, 
and  his  vendee  has  only  a  claim  to  a  share  of  the  surplus  after 
payment  of  debts.* 

An  attempted  assignment  by  one  partner  is  an  unau- 
thorized exclusion  of  the  copartner  which  will  justify  the 
appointment  of  a  receiver  and  an  injunction  against  the 
assignee.® 

1  In  Steinhart  v.  Fyhrie,  5  Montana,  Coleman  v.  Darling,  G6  Wis.  155.  And 

463,  it  was  said  that  tlie  act  was  so  see  Loeb  v.  Pierpoint,  58  Iowa,  469; 

important   and  solemn   that   public  43  Am.    Rep.  123;  and  Steinhart  v. 

policy  requires  that  the  autliority  be  Fyhrie,   5  Montana,    463.      But  see 

given  in  advance,  and  under  such  Adee  v.  Cornell,  93  N.  Y.  572. 

circumstances  that  no  question  can  3  Brooks  v.  Sullivan,  32  Wis.  444. 

arise  as  to   it;  and    in   Holland    v.  See,    also,    Steinhart    v.    Fyhrie,   5 

Drake,  cited  in  the  next  note,  it  was  Montana.  403. 

said  that  a  ratification  could  not  re-  <  Deckert  v.  Filbert,  3  Watts  &  S. 

late  back,  because  attaching  credit-  454 ;  Holland  u.  Drake,  29  Oh.  St.  441; 

ors  might  go  on  in  ignorance  of  it  Mygatt  v.  McClure,  3  Head  (Tenn.), 

and  perhaps  be  finally  defeated  by  495. 

the  ratification  and  left  to  pay  costs;  8 Clark  v.  Wilson,  19  Pa.  St.  269; 

a  reason  which  requires  a  public  and  Clark  v.  McClelland,  2  Grant's  Cas. 

not  a  secret  ratification.  31. 

2Stein  V.  La   Dow,  13  Minn.   412;  eormsbee  v.  Davis,  5  R.  I.  442. 
Holland  v.   Drake,  29  Oh.  St.    441; 

343 


PARTICULAR  POWERS  BEFORE  DISSOLUTION.        §  340. 

§  340.  Absence  of  copartner  an  authorization. —  Where, 
however,  the  other  partner  is  absent,  and  his  whereabouts 
is  unknown,  or  if  very  distant  and  the  emergency  is  such 
that  he  cannot  be  communicated  with,  such  power  is  deemed 
to  exist  in  the  resident  partner.  Thus,  where  the  other 
partner  had  absconded  under  such  circumstances  as  to  im- 
ply an  abandonment,  and  consent  to  the  exckisive  control 
of  the  other,  the  latter  may  assign  in  the  firm  name  for 
the  benefit  of  creditors,^  Or  where  he  was  absent,  no  one 
knew  where,  and  was  believed  to  have  absconded,  and  a 
crisis  had  to  be  met,  the  assignment  was  held  good,  though 
the  absentee  afterwards  returned.^  So  where  the  other 
partners  are  absent  at  a  great  distance,  as  in  Europe,  leav- 
ing the  assignor  as  the  sole  manager  in  this  country,  and 
an  exigency  arises,  his  assignment  for  the  benefit  of  credit- 
ors to  prevent  involuntary  preferences  is  valid,' 

But  mere  temporary  absence  of  the  other  partner  from  the 
state  is  not  sufficient/  Where  the  absentee  lived  only  seventy-five 
miles  away,  with  telegraph  and  daily  mail  communication  between 
the  towns,  the  assignment  is  unauthorized.'     Though  the  absentee 

iNewhall  v.  Buckingham,  14  111.  Gregory,  29  Barb.  560  (the  action  of 
405 ;  National  Bk.  of  Bait.  v.  Sack-  the  court  of  appeals  on  this  case  is 
ett,  2  Daly,  395;  Welles  v.  March,  30  stated  in  Wells  v.  Marsh,  30  N.  Y. 
N.  Y,  344;  Kemp  v.  Carnley,  3  Duer,    344,  330). 

1;  Palmer  v.  Myers,  43  Barb.  509;  4 Dunklin  v.  Kimball,  50  Ala.  251; 
29  How.  Pr.  8;  Sullivan  v.  Smith,  15  Pettee  r.  Orser,  6  Bosw.  123;  18  How. 
Neb.  476;  47  Am.  Rep.  354;  Deckard  Pr.  442,  where  the  assignment  was 
V.  Case,  5  Watts,  22;  30  Am.  Dec.  with  preferences.  But  in  McCul- 
287 ;  Rumery  v.  McCulloch,  54  Wis.  lough  v.  Sommerville,  8  Leigh,  415, 
565.  See,  also,  Dupuy  v.  Leaven-  an  assignment  with  preferences  by 
worth,  17  Cal.  263.  But  not  even  a  managing  partner  was  upheld,  the 
then  with  preferences.  Wetter  v.  other  partners  being  resident  in  an- 
Schlieper,  4  E.  D.  Smith,  707;  15  other  state.  And  where  the  articles 
How.  Pr.  26a.  •  provided   for  equal  payment  to  all 

2  Petition  of  Daniels,  14  R.  I.  500.  creditors,  anassignment  withprefer- 
'Harrison  u.  Sterry,  5Cranch,  289;  ence  by  one  partner,  in  violation 
Anderson  v.  Tompkins,  1  Brock.  416;  thereof,  was  held  void  in  Marsh  v. 
Robinson  v.  Crowder,  4  McCord  (S.  Bennett,  5  McLean,  117. 
Ca.),  L.  519;  17  Am.  Dec.  763;  Forbes  5  See  Hunter  v.  Waynick,  67  Iowa, 
V.  Scannell,  13  Cal.  242;  Williams  v.  555. 
Frost,    27   Minn.    255;    Robinson   v. 

349 


g  341.  CONDUCT  OF  THE  BUSINESS. 

is  the  most  active  member  of  the  firm,  and  his  absence  was  in  an- 
other state,  and  was  unexpectedly  protracted,  and  the  partnership 
was  deeply  involved  and  creditors  were  urging  payment,  these 
facts  will  not  support  the  assignment,  for  there  is  no  extraordinary 
emergency  here.'  v 

An  assignment  in  good  faith  by  one  partner  in  the  other's  ab- 
sence, to  prevent  one  creditor  from  seizing  the  entire  assets,  has 
been  uplield.* 

BILLS  AND  NOTES. 

§  311.  In  trailing  firms.— One  of  the  most  ordinary  inci- 
dents of  the  business  of  any  trading  firm,  and  closely  allied  to 
the  power  to  borrow  and  to  buy  on  credit,  is  the  power  to 
make,  draw,  accept  or  indorse  mercantile  paper;  hence,  as  part 
of  the  usual  routine  of  business,  each  partner  in  a  trading 
firm  has  authority  to  sign  the  name  of  the  firm  to  negotiable 
paper.' 

In  Davison  v.  Robertson,  3  Dow.  218,  each  of  two  partners  gave 
a  bill  in  the  name  of  the  firm  without  the  knowledge  of  the  other 
for  the  same  debt,  and  the  firm  was  held  liable  on  both  to  a  bona 
fide  holder. 

In  Wilson  v.  Richards,  28  Minn.  337,  a  partner  who  had  bought 
lumber  from  his  firm  gave  his  note  to  it,  and  the  firm  indorsed  the 
note  and  got  it  discounted.  A  renewal  of  the  note  by  such  part- 
ner and  indorsement  of  the  firm  was  held  to  be  within  the  scope 
of  his  authority,  and  not  using  the  firm  name  for  his  private  debt, 
for  it  was  a  debt  of  the  firm. 

1  Stein  u.  La  Dow,  13  Minn.  413.  218;  Brown  v.    Kidger,    3  H.  &  N. 

2 In  Graves  V.   Hail,    33  Tex.  665,  853;  Stepliens  u  Reynolds,  5  id.  513; 

but  here  the  otiier  partner  made  no  Ex  parte  Darlington  Bauldug  Co.  4 

complaint.   And  see  Lasell  v.  Tucker,  DeG.  J.  &  S.  581 ;  Sutton  v.  Gregory, 

5Sneed,  33.  The  right  of  a  surviving  2  Peake,    150;  Lewis  v.  Reilly,  1  Q. 

partner  stands  on  a  different  basis,  B.  349;  Swan  v.  Steele,  7  East,  210;  3 

for  he  is  in  legal  contemplation  the  Smith,  119 ;  Winship  v.  Bank  of  U.  S. 

sole  owner,  and  his  power  to  assign  5  Pet.  529;Kiml)ro  u.  Bulliit,  23  How. 

for  creditors  is  generally  conceded.  256 ;  Cocke  v.  Branch  Bank,  3  Ala. 

See  §  733.  175 ;  Howze  v.  Patterson,  53  id.  205 

sPinkney  v.  Hall,  Ld.  Raym.  175  (25  Am.  Rep.  G07);  Wagner  v.  Sim- 

(1    Salk.    120);   Smith   v.   Bailey,    11  mons,  61  id.  143 ;  Palmer  u.  Scott,  68 

Mod.  401; -E^cpaWeBonbonus,  8  Ves.  id.    380;    Storer   v.    Hinkley,    Kirby 

540;  Davison  v.  Robertson,  3  Dow.  (Conn.),  147 ;  Champion  r.  Mumford, 

350 


PARTICULAR  POWERS  BEFORE  DISSOLUTION.         §  341. 

And  the  power  to  renew  a  note  is  the  same  as  the  power  to  give 
one,'  but  is  no  greater;  and  as  one  partner  cannot  enlarge  an  ex- 
traneous liability,  be  cannot  renew  an  accommodation  note  where 
the  firm  is  surety,  or  extend  the  time,''  or  alter  the  note  of  a  non- 
trading  firm/ 

But  a  partner  can  alter  the  note  of  a  trading  firm  by  inserting  a 
place  of  payment,*  or  destroy  it  and  substitute  another,'  and  can 
waive  demand  and  notice.*  And  where  debts  of  a  prior  firm  have 
been  assumed,  the  same  right  to  give  notes  for  them  exists  as  for 
other  debts.' 

The  power  must  be  exercised,  however,  in  the  usual 
course  of  business,  otherwise  a  payee  knowing  this  cannot 
hold  the  firm  upon  it. 

Thus,  in  Whitman  v.  Leonard,  3  Pick.  177,  one  of  two  partners 
had  absconded,  and  thereupon  the  other  partner  gave  to  a  creditor 
a  new  note  in  the  name  of  the  firm,  payable  on  demand,  in  place 
of  a  note  not  due,  to  enable  him  to  attach,  and  this  was  held  not 
in  the  usual  course  of  business,  and  the  attachment  would  be  set 
aside  at  the  instance  of  other  creditors.  Although,  if  such  ab- 
sconding be  a  dissolution,*  the  creditor  had  no  notice  of  the  dissolu- 

id.  170;  Pease  v.  Cole,   53  Conn.  53;  118;  Crostliwait  v.  Ross,  1   Humph. 

Dowr.  Phillips,    24  111.  249;  Walsh  23,  29  (34  Am.  Dec.  613);  Crozier  v. 

V.  Lannan,  98 id.  27  (38  Am.  Rep.  75);  Kirker,  4  Tex.  252  (51  Am.  Dec.  734); 

Gregg  V.    Fisher,    3    111.    App.    261;  Michael  r.  Workman,  5   W.  Va.  391. 

Sherwood  v.  Snow,  46  Iowa,  481  (26  For  the  power  to  indorse  as  involved 

Am.  Rep.  155);  Deitz  v.  Regnier,  27  in  the  power  of  disposition  of  paper 

Kan.  94;  Liudh  v.  Crowley,  29  id.  belonging  to  the  firm,  §  401.     As  in- 

756;  Smith  v.  Turner,  9  Bush,  417;  volved  in  a  power  to  give  security, 

Judge  V.  Braswell,  13  Bush,  67,  75  §  349. 

(26  Am.  Rep.  185);  Coursey  v.  Baker,  i  Tilford  v.  Ramsey,  37  Mo.'563. 

7  Har.  &  J.  28;  Richardson  V.  French,  2Milmine  v.   Bass,    29    Fed.   Rep. 

4  Met.    577;   Smith    v.    Collins,  115  632;  Tilford  v.  Ramsey,  37  Mo.  563, 

Mass.   388;  Stimson  v.  Whitney,  130  567. 

id.  591;  Carrier  u.  Cameron,  31  Mich.  3  Horn  v.  Newton  City  Bank,  32 

473;  Faler   v.  Jordan,  44  Miss.  283;  Kan.  518. 

Holt  V.  Simmons,  16  Mo.    App.    97;  ^Pahlman  r.  Taylor,  75  111.  629. 

Feurt  V.  Bniwn,  23  id.  332;  Roney  v.  SMoseley  v.  Ames,  5  Allen,  163. 

Buckland,  4  Nev.  45;  Dow  v.  Moore,  fiSee  §§  397-400. 

47  N.  H.  419;  Benninger  v.  Hess,  41  'See  §  347. 

Oh.  St.  64;Ho9kisson  r.  Eliot,  62  Pa.  8  Which  was  denied   in  Arnold  v. 

St.  393;  Moorehead  v.  Gilmore,  77  id.  Brown,  24  Pick.  89. 


§  842.  CONDUCT  OF  THE  BUSINESS. 

tion,  for  notico  is  either  not  necessary  in  such  case  or  is  implied  in 
the  nature  of  the  transaction. 

In  Hicks  v.  Russell,  72  111.  230,  one  firm  gave  a  note  secured  by 
the  individual  mortgage  of  one  partner  to  another  firm;  then  both 
firms  dissolved  without  giving  notice  of  dissolution,  and  the  partner 
of  the  maker  firm  who  gave  the  mortgage  made  new  notes  in  the 
firm's  name  and  delivered  them  to  one  of  the  payee  firm,  who  released 
the  mortgage.  This  was  held  not  in  the  ordinary  course  of  trade  and 
neither  firm  is  bound;  and  there  is  no  power  to  issue  a  note  or  bill 
in  blank,  as  where  an  acceptance  is  issued  without  any  drawer,  and 
only  a  honajide  buyer  of  such  paper  after  the  insertion  of  the  name 
could  sue  upon  it.' 

§  342.  Tlie  fact  that  the  articles  forbid  any  or  all  partners 
to  make  negotiable  paper  does  not  afliect  the  validity  of  the 
paper  in  the  hands  of  a  payee  who  was  not  aware  of  the 
restriction,  as  we  have  seen,  §  322. ^ 

Even  if  a  partner  draw  bills  on  the  firm  in  fictitious  names 
and  raise  money  for  the  firm  by  using  its  name  on  such 
paper,  all  the  partners  are  liable.^ 

In  Burgess  v.  Northern  Bank  of  Ky.  4  Bush,  600,  a  draft  was 
drawn  in  the  forged  name  of  E.  B.  as  drawer,  on  the  firm  of  J.  & 
B.,  and  accepted  by  J.,  who  then  forged  the  name  of  E.  B.  as 
payee  and  procured  the  plaintiff  bank  to  discount  it,  and  then,  by 
forging  a  check  in  E.  B.'s  name,  drew  from  the  bank  the  proceeds 
of  the  discount.  It  was  urged  that  the  bank  had  no  title  because  it 
claimed  through  a  forged  indorsement,  and  that  a  firm  is  not  liable 
for  the  crime  of  a  partner;  but  it  was  held  that  as  a  partner  issued 
the  paper  the  firm  was  estopped  to  deny  the  genuineness  of  the 
indorsement. 

Where  partners  own  property  as  tenants  in  common  and  not  as 
partnership  property,  the  implied  power  of  a  partner  docs  not  ex- 
tend to  making  negotiable  paper  in  relation  to  it.  Thus,  one  part- 
ner cannot  bind  the  firm  by  a  note  for  a  premium  of  insurance 
upon  a  vessel  owned  as  tenants  in  common.^ 

1  The  power  to  indorse  over  paper       2  Bloom  v.  Helm,  53  Miss.  21;  Ben- 
luade  to  the  firm  involves  the  power    ninger  t\  Hess,  41  Oh.  St.  C4. 
of  disposition  and  is  treated  under        STliicknesse  v.  Bromilow,  2  Cr.  & 
§  401.     Hogarth  v.  Latham,  3  Q.  B.    J.  42.'). 

D.  643.  4  Lime  Rock   F.  &  M.  Ins.  Co.  v. 

Treat,  58  Me.  415. 
852 


PARTICULAR  POWERS  BEFORE  DISSOLUTION.        §  343. 

§343.  In  iioii-tratling  firms.— The  general  rule  in  non- 
trading  partnerships  is  that  no  autliority  to  sign  mercantile 
paper  is  implied,  and  it  makes  no  difference  that  it  was  for 
the  benefit  of  the  firm.  Nevertheless,  there  are  a  number 
of  cases  in  which  mercantile  paper  has  been  held  binding 
on  such  firms.  The  test  seems  to  be  whether  tlie  paper  is 
essential  to  carry  into  effect  an  ordinary  purpose  for  wliich 
the  partnership  was  formed.  By  such  test  it  would  seem 
that  a  note  to  pay  a  debt  or  to  borrow  money,  even  though 
it  be  borrowed  to  pay  a  debt  or  make  a  purchase,  ma}^  not 
be  binding  without  proof  of  assent  of  the  other  partners  or 
a  usage  of  such  business.  Yet  no  doubt  each  partner  can 
draw  a  sight  check  ^  on  the  firm's  deposits  or  a  draft  on  a 
debtor  of  the  firm,  or  indorse  over  paper  which  belongs  to 
and  is  payable  to  the  firm.  But  each  partnership  must 
stand  largely  on  the  nature  of  its  peculiar  business,  and  no 
rule  of  universal  application  is  possible. 

In  Pooley  v.  Whitmore,  10  Heisk.  629  (27  Am.  Rep.  733),  it  was 
held  error  to  charge  a  jury  that  if  the  nature  of  the  business  was 
such  that  a  partner  might  or  might  not  sign  negotiable  paper,  the 
partners  are  liable  upon  a  note  made  by  one  partner  in  the  hands 
of  a  bona  fide  holder.  In  other  words,  in  case  of  doubt  the  power 
is  not  deemed  to  exist. 

In  Sherman  v.  Kreul,  42  Wis.  33,  it  was  held  that  a  power  in  a 
non-trading  firm  to  buy  on  credit  does  not  involve  the  power  to 
bind  by  a  negotiable  note,  and  hence,  in  an  action  on  a  note  given 
by  one  partner  in  ihe  firm  name  for  a  span  of  horses,  a  charge  to 
the  jury  that  if  the  copartners  had  authorized  the  purchase  on 
credit  the  verdict  should  be  for  the  plaintiff  is  erroneous.' 

It  makes  no  difference  that  the  consideration  of  the  note  was 
applied  to  the  benefit  of  the  firm  or  to  pay  a  debt  owed  by  it.    If 

iThat  he  can  do  so  in  a  trading  firm,   as  a  firm  of  lawyers,   cannot 

firm,    Forster  v.   Mackreth,  L.   R.  2  issue  it. 

Ex.  1C3;  Bull  u.  O'Sullivan,   L.   R.  6       2The   same    ruling   was    made   in 

<3.    B.    209;    Commercial     Bank    v.  Bradley  v.   Linn,   19   III.  App.    322; 

Proctor,  98  111.  558.     It  must  be  re-  and  also  in  Skillmau  v.  Lachman,  23 

membered  that   a  post-dated   check  Cal.  199,  where,   however,  the  note 

is  equivalent  to  a  time  draft,  and  a  was  for  three  per  cent,  a  mouth, 
member  of    a    strictly   non-trading 

Voul— 23  353 


§  313.  CONDUCT  OF  THE  BUSINESS. 

giving  a  note  is  ontside  tlie  scope  of  the  business,  the  note  is  not 
biudiiig  unless  authority  to  issue  it  was  given  or  is  implied  from 
the  usage  of  the  firm  or  the  business.'  Hence,  if  the  firm  can  be 
sued  upon  the  original  consideration,  damages  upon  the  protested 
paper  cannot  be  included  in  the  recovery.'' 

In  Horn  v.  Newton  City  Bank,  32  Kan.  518,  as  a  partnership  in 
the  operation  of  a  threshing  machine  is  not  a  trading  one,  an 
alteration  of  the  purchase  money  note  given  for  the  machine,  by 
substituting  another  payee  by  consent  of  one  partner,  was  held  not 
binding,  and  to  be  a  release  of  the  other  partner  from  the  note.* 

A  partner  in  a  farming  partnership  cannot  bind  the  firm 
by  a  note;*  nor  of  a  firm  of  tavern  keepers;^  nor  one  of  a 
steam  saw- mill  firm.^  So  of  a  partnership  in  a  patent  to 
clarify  sugar,  even  though  bound  for  the  consideration  of 
the  note.''  And  if  the  partnership  is  to  buy  and  sell  to  In- 
dians in  the  ludian  territory,  this  was  held  of  itself  to  show 
that  a  partner  had  no  power  to  make  a  note.^ 


1  Hedley  v.    Bainbridge,    3    Q.    B,  could  give  a  note  for  a  stove;  and 

31G,  of  a  law  firm  to  pay  a  debt  due  Doty  v.   Bates,   11   Johns.  514,  that 

to  a  client.     Greenslade  v.  Dower,  7  the  note  of  a  firm  engaged  in  tan- 

B.  &  C.  635,  of  a  farming  partner-  ning.  cm-rying  and  shoemaking  was 

ship  to  pay  a  debt  for  the  property,  presumed  to  be  authorized.     Lanier 

Smith  V.  Sloan,  37  Wis.  285;  19  Am.  v.    McCabe,   2   Fla.   32,   40;  48  Am. 

Rep.  757,  of  a  law  firm  to  pay  office  Dec.  173,  hints  that  the  note  might 

rent  which  they  owed.     Bays  u.  Con-  have  been  good  if  it  had  been  to  pay 

ner,  105  Ind.  415,  for  a  loan  to  pay  a  a  debt, 
debt.     Sherwood,  J.,  in  Dcardorf  v.       2Hermanos  v.  Duvigneaud,  10  La. 


Thacher,  78  Mo.  128,  133;  47  Am. 
Rep.  95;  Breckinridge  v.  Slirieve,  4 
Dana,  375,  to  borrow  to  pay  a  debt. 
Benton   v.  Roberts,  4  La.  Ann.  217, 


Ann.  114. 

3  Greenslade  v.  Dower,  7  B.  &  C. 
635;  1  Man.  &  Ry.  640. 

^Greenslade  v.  Dower,  7  B.  &  G. 


of  a  planting  partnership  to  pay  for  635;  Benton  v.  Roberts,  4  La.  Ann. 
the  land  held  in  common.  Prince  r.  216;  Prince  v.  Crawford,  50  Miss. 
Crawford,  50  Miss.  344,  of  a  planting  344;  Hunt  v.  Chapin,  6  Laus.  139; 
partnership  for  necessaries.  Ulery  Ulery  v.  Ginrich,  57  111.  531. 
r.  Ginrich,  57  111.  531,  of  a  farming  5  Cocke  v.  Branch  Bank  at  Mobile, 
partnership  in  part    to    pay  debts.    3  Ala.  175. 

Hermanos    v.    Duvigneaud,    10    La.       6  Lanier  v.  McCabe,  2  Fla.  32;  48 
Ann.  114;  McCord  v.  Field,  27   Up,    Am.  Dec.  173. 

Can.    C.    P.    391.     But   Hickman   v.        7  Hermanos  t>.  Duvigneaud,  10  La. 
Kunkle,  27  Mo.  401,  held  that  one  of    Ann.  114. 

livery -stable    keepers,  prima  facie,       scargillv.  Corby,  15  Mo.  425. 

854 


PAETICULAR  POWERS  BEFORE  DISSOLUTION.        §  S44. 

So  a  firm  in  the  diy  goods  business,  wliicli  also  carries  on  a  plan- 
tation, is  as  to  the  latter  a  non-trading  firm,  and  a  note  given  to 
carry  on  the  plantation  is  presumptively  unauthorized,  unless  in 
the  hands  of  a  bona  fide  buyer.'  So  of  the  note  of  a  partnership 
in  the  operation  of  a  furnace,  given  for  the  purchase  of  a  distillery.* 
So  of  a  note  for  a  lightning  rod  to  the  mill.' 

§  344.  There  are,  however,  a  number  of  cases  holding 
that  a  note  for  the  purchase  of  sui3plies  by  a  member  of  a 
non-tracling  partnership  is  valid. 

In  Johnston  v.  Button,  27  Ala.  245,  a  purchase  on  credit  by 
one  partner  in  a  steam  saw-mill  firm  of  groceries  and  previsions 
necessary  for  the  hands,  and  giving  a  note  therefor,  is  virith'n  the 
scope.  So  in  Gavin  v.  Walker,  11  Lea,  643,  a  note  to  borrow  money 
for  supplies  was  held  binding  on  a  firm  formed  to  grade  a  railroad 
line. 

In  Miller  v.  Hines,  15  Ga.  197,  201,  it  was  said  that  a  note  given 
by  a  member  of  a  law  firm  for  the  purchase  of  law  books  for  the 
firm  would  be  binding. 

And  iu  Crosthwait  v.  Ross,  1  Humph.  23  (34  Am.  Dec.  613),  the 
same  was  held  of  a  purchase  by  note  of  medicines,  instruments, 
etc.,  by  one  of  a  medical  firm. 

In  Newell  v.  Smith,  23  Ga.  170,  proof  that  a  note  of  a  tannery 
firm  was  given  by  one  partner  for  the  hire  of  labor  was  held  to  re- 
move the  onus  of  proving  authority. 

In  Pease  v.  Cole,  53  Conn.  53,  72,  it  was  said  that  proof  that  the 
firm  got  the  benefit  of  the  note  would  perhaps  tend  to  show  that 
it  was  the  firm's  note. 

In  Hickman  v.  Kunkle,  27  Mo.  401,  404  (a  case  overruled  in  sev- 
eral respects  in  78  id.  128),  it  was  said  that  a  note  by  a  member  of 
a  livery-stable  firm  for  §71  for  stoves  was  not  necessarily  outside 
the  scope,  as  it  might  need  one  or  more  stoves  for  lieating,  whereas 
for  a  purchase  of  fifty  or  a  hundred  stoves  would  be  clearly  out- 
side. 

And  in  Levi  v.  Latham,  15  Neb.  509  (48  Am.  Rep.  361),  also  a 
livery-stable  firm,  the  court,  in  ruling  the  note  to  be  void  where 
the  signing  partner  kept  the  proceeds,  seem  to  say  that  if  the 

iHuntr.  Chapin,  6  Lans.  139.  'Graves  v.  Kellenberger,  51   Ind. 

2  Waller  v.  Keyes,  6  Vt.  257.  66,  the  other  partner  owned  the  milL 

855 


§  315.  CONDUCT  OF  THE  BUSINESS. 

holder  could  show  that  the  note  is  necessary  to  carry  on  the  husi- 
ness,  this  would  show  power  to  make  it. 

In  Voorhees  v.  Jones,  29  N.  J.  L.  270,  the  note  of  a  firm  whose 
business  was  a  contract  to  build  a  railroad  was  held  binding  on  all 
the  partners. 

In  Davis  v.  Cook,  14  Nev.  265,  283,  the  opinion  of  the  court  is 
to  the  effect  that  a  power  to  purchase  being  given  involves  the 
power  to  give  notes  for  the  purchase,  where,  as  in  the  example  put 
by  the  court,  the  purchase  of  a  hotel,  the  transaction  is  so  large  as 
to  involve  deferred  payments;  but  the  actual  controversy  in  the 
case  was  over  the  purchase  of  a  stock  to  open  a  branch  store, 
clearly  a  trading  firm;  and  so  of  Brooke  v.  Washington,  8  Gratt. 
248,  of  notes  by  managing  partners  of  an  iron  manufacturing 
partnership  to  buy  timber  land  to  get  fuel  from.  The  notes  were 
held  valid.  The  power  to  buy  the  land  seems  to  have  been  as- 
sumed, and  the  only  question  was  on  whose  credit  it  was  bought. 

In  Deardorf  v.  Thacher,  78  Mo.  128, 135  (47  Am.  Rep.  95),  it  was 
said  by  Henry,  J.,  that  if  the  holder  could  have  shown  that  the 
consideration  of  the  note  was  articles  or  labor  necessary  in  the 
business  of  the  firm,  the  firm  would  have  been  bound;  whereas 
Sherwood,  J.,  p.  133,  said  tliat  the  note  would  not  be  binding,  even 
if  given  for  the  purposes  of  the  firm  and  though  the  firm  would  be 
charged  with  the  debt  created. 

In  Brayley  v.  Hedges,  52  Iowa,  623,  one  of  a  firm  of  agents  to 
sell  machines  gave  a  note  to  pay  a  debt,  and  it  was  held  valid.  So 
in  Van  Brunt  v.  Mather,  48  Iowa,  503,  of  a  storage,  forwarding 
and  collecting  firm. 

§  345.  doctrine  of  bona  fide  bnyer  does  not  cure. — 

The  doctrine  of  bona  fide  buyer  does  not  apply  to  the  pur- 
chaser of  the  note  of  a  non-trading  firm.  If  there  was  no 
authority  to  make  the  note,  the  payee  cannot  convey  a 
greater  title  than  he  had,  and  the  buyer  takes  it  at  his  peril, 
for  he  must  inquire  whether  the  nature  of  the  business  in- 
volves the  power  to  issue  mercantile  paper,  and  if  it  does 
not  he  has,  by  law,  notice  of  that  fact.^ 

1  Dickinson  y.  Valpy,  10  B.  &  C.  138 ;  v.  Thompson,  33  La.  Ann.  196 ;  Levi  v. 
Cocke  V.  Branch  Bank,  3  Ala.  175;  Latham,  15  Neb.  509  (48  Am.  Rep. 
Pease  v.  Cole,  53  Conn.  53  (a  very  361);  Deardorf  v.  Thacher,  78  Mo. 
carefully  considered  case);  Benedict    128  (47  Am.  Rep.  95);  Prince  v,  Craw- 

356 


PARTICULAR  POWERS  BEFORE  DISSOLUTION,        §  346, 

As  in  case  of  all  otlier  powers,  want  of  implied  power  is  snppliel 
by  previous  express  authorization  or  subsequent  ratification;  lunce 
if  T.  agrees  to  convey  land  to  E.  &  S.,  partners,  payable  in  their 
notes,  a  tendar  of  notes  signed  by  IJ.,  in  the  firm  name,  is  a  good 
tender.'  But  an  express  authority  given  to  a  partner  to  indorse 
over  notes  received  in  payment,  in  order  to  turn  them  into  money, 
will  not  bind  the  firm  by  an  accommodation  indorsement  outside 
the  scope  of  the  business,  in  the  hands  of  an  innocent  holder  for 
value.* 

§  IM6.  Joint  and  several  notes. —  As  a  partner  represents 
the  firm,  and  is  not  th3  agent  of  each  partner  separately,  it 
follows  that  he  has  no  implied  power  to  bind  by  a  joint  and 
several  note,  or  to  bind  each  individually,  or  any  number 
less  than  all.^ 

Such  note,  however,  whether  made  expressly  as  a  joint 
and  several  note,  or  using  the  phrase  "  I  promise  "  with  the 
individual  names  appended,  is,  if  possible,  construed  as  a  valid 
joint  note;  *  but  where  the  signatures  are  so  placed  that  the 
apparent  interests  and  legal  obligations  of  the  partners 
would  be  different,  as  where  one  appears  as  maker,  and  the 
other  as  surety,  it  is  doubtful  whether  the  non-assenting  one 
is  bound  at  all.  ^ 

The  signing  partner,  however,  is  bound  severally  as  well 
as  jointly,  though  the  firm  name  be  signed;  ^  but  though  the 
words  '*!  promise"  signed  by  several,  import  a  joint  and 
several  promise,  yet  if  the  signature  is  in  a  firm  name,  the 

ford,  50  Miss.  J544 ;  Lynch  v.  Thonip-  homestead  exemptions. in  individual 

son,  61  id.  354;  Judge  v.  Braswell,  13  property  or  any  other  pergonal  priv- 

Bush,   G7   (26  Am.    Rep.    185).     See,  ilege.     Terrell  v.  Hurst,  76  Ala.  588. 

also,  Greenslade  v.  Dower,  7  B.  &  C.  ■*  Maclae  v.  Sutherland,  3  El.  &   B. 

635;  Williams  u.  Thomas,  6  Esp.  18.  36;    Doty   v.    Bates,  11   Joliiis.    544; 

1  Smith  V.  Jones,  12  Me.  332.  Sherman  y.  Christy,  17  Iowa,  322. 

2  Ilotchkiss  V.  English,  4  Hun,  369;  5  Stroh  v.  Hinchman,  37  Mich.  490. 
6N.  Y.  Supreme  Ct.  658.  6  Elliot  v.   Davis,  2  B.   &  P.    338; 

sPerring  u.  Hone,  4  Bing.  28,  33;  Sherman  v.  Christy,  17  Iowa,  322; 
2  C.  &  P.  401;  Sherman  v.  Christy,  Fulton  v.  Williams.  11  Cush.  108, 
17  Iowa,  322,  324;  Marlett  v.  Jack-  109;  Snow  v.  Howard,  35  Barb.  55. 
man,  3  Allen,  287,  291;  Snow  v.  See,  also,  Gillow  u.  Lillie,  1  Bing.  N. 
Howard,  35  Barb.  55.     Or  to  waive    Cas.  695. 

357 


§347. 


CONDUCT  OF  THE  BUSINESS. 


note  is  joint  only,  and  even  the  signer  himself  cannot  be 
sued  alone.  ^ 

But  if  on  a  joint  and  several  note,  signed  in  the  firm  name,  the 
name  of  a  third  person  is  also  added,  the  words  jointly  and  sev- 
erally apply  to  bind  the  firm  as  one  pej'son,  and  the  other  signer  as 
another  jjerson  severally,  but  not  the  partners  severally  apart  from 
each  other.* 

The  firm  is  liable,  but  only  jointly,  whether  the  note  be  "  I  prom- 
ise "  and  signed  by  "  A.  B."  or  "  A.  B.,  C.  D.,  E.  F.; "  =>  or  we  jointly 
and  severally  promise  for  the  firm."* 

§  34:7.  Bill  or  note  for  separate  debt. —  A  partner  cannot 
bind  the  firm  by  giving  a  note  to  pay  his  separate  debt,  un- 
less authorized  by  his  copartners,  and  this  fact  is  a  perfect 
defense  except  as  against  a  bona  fide  indorsee  of  the  cred- 
itor.    Such  a  note  is  a  gross  fraud  on  the  copartners.' 

1  Ex  parte  Buckley,  14  M,  &  W.  Blackf.  57,  261 ;  Hickman  v.  Reine- 
469;  1  Ph.  562  (overruling  Hall  v.  kiiiff,  6  Blackf.  387:  Flagg  u.  Upham, 
Smith,  1  B.  &  C.  407);  s.  C.  as  Ex  10  Pick.  147,  148-9;  Adams  Bank  u. 
par/e  Clarke,  DeGex,  153;  (reversing  Jones,  16  id.  574;  Roberts  v.  Pepple, 
S.  C.  as  Ex  parte  Christie,  3  M.  D.  &  55  Mich.  367;  Robinson  v.  Aldridge, 
DeG.  736);  Brown  v.  Fitch,  33  N.  J.  34  Miss.  352;  Klein  v.  Keyes,  17  Mo. 
L.  418;  Doty  v.  Bates,  11  Johns.  544;  326 ; Ferguson  u  Thacher,  79  Mo.  511; 
Van  Tine  v.  Crane,  1  Wend.  524.  Davis  v.    Cook,  9  Nev.   134;  Daveu- 

2  Van  Tine  v.  Crane,  1  Wend.  524;  port  v.  Runlett,  3  N.  H.  386;  Will- 
J2e  Hulbrook,  2  Low,  259.  iams  u.  Gilchrist,  11  id.    535;  Dob  r. 

3  Gal  way  v.  Matthew,  1  Camp.  403;  Halsey,  16  Johns.  34.  39  (8  Am.  Dec. 
Ex  parte  Buckley,  14  M.  &  W.  469;  293);  Williams i?.  Walbridge,  3  Wend. 
IPh.  5G2;  Ex  parte  Clarke,  DeG.  153,  415;  Gansevoort  v.  Williams,  14  id. 
reversing  Ex  parte  Christie,  3  M.  D.  133;  Rust  v.  Hauselt,  9  Jones  &  Sp. 
&  DeG.  73ij;  Doty  V.Bates,  11  Johns.  467  (aflfd.  76  N.  Y.  614);  Gale  v. 
544.  Miller,     54     N.     Y.     536;     Atlantic 

<Maclaeu.  Sutherland,  3  E.   &  B.  State  Bank  v.  Savery,  83  N.  Y.  291 

1;  Re  Holbrook,  2  Low.  259;  Brown  (affg.  18  Hun,  36);  Cotton  v.  Evans, 

V.  Fitcii.  33  N.    J.  L.  418;  Van   Tine  1   Dev.    &  Bat.    Eq.    284;    Wrt-d  v. 

.V.   Crane,    1   Wend.     524;    Snow  v.  Ricliardson.  2  Dev.  &   Bat.    L.    535; 

t  Howard,  35  Barb.  65.  Miller  u.  Richardson,  2  Ircd.    L.  250; 

5  See,  for  exam  pie,  Scott  V.  Dansby,  Himelright  v.   Johnson,  40  Oh.    St. 

12  Ala.    714;    Freeman   v.    Ross,    15  40;  Baird  v.  Cochran,  4  S.  &  R.  397; 

Ga.    252;  Gray  u.  Ward,    18    111.32;  397;  Porter  u.  Gunnison,   2  Granfs 

Wittramv.  VanWormer,44  111.  525;  Cas.     297;    McKinuey   u.  Bradbury, 

Taylor  v.  llillyer,  3   Blackf.  433  (26  Dallam  (Tex.),  441;  Van   Alstyne'r. 

Am.  Dec.   430);  Hagar  v.  Mounts,  3  Bertrand,  15  Tex.  177;  Poiudexter  v. 

358 


PARTICULAR  POWERS  BEFORE  DISSOLUTION.      '  §  347. 


Nor  has  ho  any  right  to  issue  the  note  of  a  new  firm  to 
pay  the  debts  of  a  prior  firm  composed  in  part  of  the  same 
individuals,  whether  with  or  without  new  partners;^  or  for 
a  loan  to  himself  or  other  individual  purpose.^ 

But  if  the  new  firm  assume  the  debts  of  the  old  firm,  one  partner 
may  give  a  note  for  them/  And  a  new  firm  getting  goods  pur- 
chased before  by  one  partner  and  agreeing  to  take  and  pay  for  them 
assumes  the  debt  for  a  valuable  consideration,  and  one  partner  can 
give  a  note  for  the  price/ 

That  a  note  for  a  separate  debt  includes  a  small  firm  debt  does 
not  make  it  valid;  ^  but  the  note  can  be  enforced  to  the  extent  of 
the  valid  consideration,  there  being  no  fraud/ 

A  power  to  use  the  firm  name  for  private  purposes  is  implied,  if 
necessary  to  perfect  a  joint  transaction;  as  where  partners  divided 
notes  payable  to  the  firm,  each  can  indorse  over  to  himself  the 


Waddy,  6  Munf,  (Va.)  418  (8  Am. 
Dec.  749);  Deals  v.  Sheldon,  4  Up. 
Can.  Q.  B.  (Old  Ser.)  302.  And  see 
§  1038.  And  accommodation  parties 
U])on  tlie  paper  are  not  estopped  to 
dispute  its  validity  in  the  hands  of 
the  creditor  of  one  partner.  Garland 
V.  Jacomb,  L.  R.  8  Ex.  216.  And  see 
Russell  V.  Annable,.109  Mass.  72  (12 
Am.  Rep.  165);  but  see  §  423. 

iShirreff  v.  Wilks,  1  East,  48;  Hes- 
ter V.  Lnmpicin,  4  Ala.  509;  Bryan  v. 
Tooke,  60  Ga.  437 ;  Waller  v.  Davis, 
59  Iowa,  103;  Elkin  v.  Green,  13 
Bush,  612;  Spaunhorst  v.  Link,  46 
Mo.  197;  Howell  v.  Sewing  Machine 
Co.  12  Neb.  177;  Guild  v.  Belcher,  119 
Mass.  257.  And  see  further,  65)^557,558. 
Contra,  if  composed  of  part  of  the 
same  individuals  without  new  part- 
ners, Foster  v.  Hall,  4  Humpli.  346; 
but  where  the  new  firm  is  indebted 
to  tlie  old  and  to  its  members,  a  note 
by  one  partner  in  the  name  of  the 
new  to  a  creditor  of  the  old  was  held 
valid.  Hester  v.  Lumpkin,  4  Ala. 
609. 


2  Newman  v.  Richardson,  4  Woods, 
C.  C.  81 ;  9  Fed.  Rep.  865;  Rutledge 
V.  Squires,  23  Iowa,  53 ;  i?e  Forsyth, 
7  Bankr.  Reg.  174 ;  Potter  v.  Dillon, 
7  Mo.  228;  37  Am.  Dec.  185;  Bank  of 
Commerce  v.  Selden,  3  Minn.  155; 
Stainer  v.  Tysen,  3  Hill,  279,  Noble 
V.  McClintock,  2  W.  &  S.  152;  Gullat 
V.  Tucker,  2  Cranch,  C.  C.  33. 

3  Randall  v.  Hunter,  66  Cal.  512; 
Shaw  V.  McGregory,  105  Mass.  96. 

^Markham  v.  Hazeu,  48  Ga.  570; 
Morris  v.  Marqueze,  74  id.  86;  Silver- 
man V.  Chase,  90  111.  37;  Johnson  v. 
Barry,  95  id.  483. 

5  Bell  V.  Faber,  1  Grant's  Cas.  (Pa.) 
31 ;  King  v.  Faber,  92  Pa.  St.  21. 

6  Wilson  V.  Lewis,  2  M.  &  G.  197; 
S.  C.  as  Wilson  v.  Bailey,  9  Dowl.  18; 
Gamble  u  Grimes,  2Ind.  392;  Guild 
V.  Belcher,  119  Mass.  257;  Ellstou  v. 
Deacon.  L.  R.  2  C.  P.  20,  but  here  the 
court  amended  the  declai'ation  by 
adding  a  count  for  the  consideration. 
Perhaps  this  would  not  be  so  in  case 
of  collusion.  See  Snyder  x\  Luns- 
ford,  9  W.  Va.  223,  given  under  §  410. 


859 


§  348.  CONDUCT  OF  THE  BUSINESS. 

notes  allotted  to  liim.'  And  on  the  same  principle,  if  a  firnl  of 
mechanics  assign  a  claim  to  one  partner,  he  can  use  the  firm's  name 
to  perfect  a  lien  on  the  debtor's  property.' 

§  348. subsequent  misappropriation  distinguished. — 

If  a  partner  borrow  money  or  buy  goods  for  the  firm  on  a  note 
made  by  the  firm,  or  lead  the  lender  or  seller  to  believe  that 
the  transaction  is  for  the  firm,  the  subsequent  misappropri- 
ation of  the  avails  by  such  partner  does  not  affect  the  payee's 
right  against  the  firm,  where  borrowing  or  buying  is  within 
the  scope  of  the  firm's  business.*  And  so  if  a  person  signs 
as  surety  for  the  firm  at  the  request  of  a  partner,  supposing 
he  is  signing  for  the  firm,  he  is  a  creditor  of  the  firm,  though 
such  partner  misappropriates  the  note  or  its  proceeds.* 

1  Mechanics'  Bank  v.  Hildieth,  9  Barb.  290;  Miller  v.  Manice,  G  Hill, 
Cush.  356.  114,  119;   Wharton  v.  Woodburn,  4 

2  Jones  V.  Hurst,  67  Mo.  5G8;  Bus-  Dev.  &  Bat.  L.  507;  Dickson  v.  Alex- 
fieW  u.  Wheeler,  14  Allen.  139.  ander,    7   Ired.   L.   4;    Kleinhaus  v. 

3  Bond  17.  Gibson,  1  Camp.  185;  Generous,  25  Oh.  St.  CG7;  Haldemaa 
Kimbro  v.  Bullitt,  23  How.  256;  v.  Bank  of  Middletovvn,  28  Pa.  St. 
Winship  v.  Bank  of  U.  S.  5  Pet.  529,  440;  Windliam  Co.  Bank  v.  Kendall, 
566;  Howze  I'.  Patterson,  53  Ala.  205;  7  R.  I.  77;  Crosthwait  v.  Ross,  1 
25  Am.  Rep.  607;  Carver  v.  Dows,  40  Humph.  23,  29;  34  Am.  Dec.  013; 
111.  374;  Stark  v.  Corey,  45  id.  431;  Venable  v.  Levick,  2  Head,  351;  Van 
Gregg  u  Fisher,  3  111.  App.  261;  Da-  Alstyne  v.  Bertrand,  15  Tex.  177; 
vis  V.  Blackvvell,  5  id.  32;  Rend  v.  Gilchrist  v.  Braude,  58  Wis.  184; 
Boord,  75  Ind.  307;  Siierwood  v.  Simpson  u.  McDonough,  1  Up.  Can. 
Snow,  46  Iowa,  481 ;  26  Am.  Rep.  155 ;  Q.  B.   157. 

Lemon  v.  Fox,  21  Kan.  152,  159;  4  Capelle  v.  Hall,  12  Bankr.  Reg. 
Lindh  v.  Crowley,  29  id.  756;  Warren  l;  Deitz  v.  Regnier,  27  Kan.  94;  Lit- 
V.  French,  6  Allen,  317;  Hay  ward  v.  tell  v.  Fitch,  11  Mich.  525;  Bank  of 
French,  12  Gray.  453 ;  Littell  v.  Fitch,  St.  Albans  v.  Giililand,  23  Wend.  311; 
11  Mich.  525;  Sylverstein  v.  Atkin-  35  Am.  Dec.  566;  Stockwell  v.  Dill- 
son,  45  Miss.  81;  Bascom  v.  Young,  Ingham,  50  Me.  442;  Wilkins  v. 
7  Mo,  1 ;  Bank  v.  St.  Jos.  Lead  Co.  12  Pearce,  5  Den.  541  (aff'd  in  2  N.  Y. 
Mo.  App.  587;  Wagner  u.  Freschl,  56  469).  Though  the  note  was  under 
N.  H.  495;  Cimrch  v.  Sparrow,  5  seal,  Wharton  r.  Woodburn,  4  Dev.  & 
Wend.  223;  Whitaker  v.  Brown,  16  Bat.  L.  507;  Piirvianceu.  Sutherland, 
id.  505;  Onondaga  Co.  Bank  v.  De  2  Oh.  St.  478.  But  whether  a  surety 
Puy,  17  id.  47;  Bank  of  St.  Albans  v.  who  has  not  paid  a  sealed  note  can 
Giililand,  23  Wend.  311;  35  Am.  Dec.  claim  the  want  of  authority  apparent 
566 ;  National  Bank  v.  Ingraham,  58   on  the  face  of  the  paper,  see  §  423. 

860 


PARTICULAR  POWERS  BEFORE  DISSOLUTION.        §  349. 

In  Stoclcwell  V.  Dillingliain,  50  Mc.  443,  D.  advanced  liis  note  to 
a  person  represented  by  one  of  the  partners  as  a  person  who  had 
loaned  him  money  to  pay  bills  of  the  firm,  and  now  wanted  it  back. 
D.  may  properly  suppose  the  person's  claim  to  be  a  debt  of  the 
firm.  And  if  a  partner  borrows  for  the  use  of  the  firm,  if  not  ex- 
pressly on  his  individual  liability,  it  is  a  firm  debt  and  D.  can  hold 
the  firm. 

§  341).  Signing  iirm  name  for  security  or  accommodation. 
A  partner  has  no  implied  authority  to  use  the  name  of  the 
firm  as  security  for  others.  It  is  no  part  of  the  business  of 
a  partnership  or  the  agency  of  a  pai'tner  to  guaranty  the 
debts  of  others  or  to  lend  their  credit  by  giving  accommo- 
dation paper  or  going  surety,  and  such  act  by  one  partner 
without  the  consent  of  the  others  is  a  fraud  on  them;  and 
a  payee  of  a  bill  or  note  who  knows  that  the  name  is  signed 
as  surety  by  a  partner  is  not  a  bona  fide  holder,  and  cannot 
recover  against  the  partnership/  even  though  reasonable 

1  Crawford  v.  Stirling,  4  Esp.  207;  Redlon  v.  Churchill,  73  Me.  146  (40 

Duucau   V.   Lowndes,   3   Camp.  478;  Am.  Rep.  345);  Hopkins  v.  Boyd,  11 

Brettel    v.    Williams,    4     Ex,    623;  Md.  107 ;  Sweetser  ?;.  French,  2  Cush. 

Hasleham  v.    Young,  5   Q.   B.    833;  309  (48  Am.  Dec.  666);  Butterfield  v. 

Be  Irving,   17  Bankr.   Reg.  22;  Rol-  Herasley,  12  Gray,  226;  Natl.  Bk.  of 

ston  V.  Click,  1  Stew.  526;  Mauldin  Commonwealth   v.    Law,   127   Mass. 

V.  Branch   Bk.  at  Mobile,  2  Ala.  502,  72;  Freeman's   Natl.   Bk.  v.  Savery, 

513;  Hibbler  v.  De  Forest,  6   id.  93;  127   id.  75;  Heffron   v.  Hanaford,  40 

Lang  V.  Waring,  17  id.  145;  Hendrie  Mich,   305;  Moynahan  v.  Hanaford, 

V.    Berkowitz,   37    Cal.    113;    N.    Y.  42  id.  329;  Selden  v.  Bank  of  Com- 

Firemen's    Ins,    Co,    v.    Bennett,    5  merce,    3    Minn,    166;     Osborne    v. 

Conn,  574  (13  Am.  Dec.  I09j;  Mix  v.  Stone,  30  id,  25;  Osborne  v.  Thomp- 

Muzzy,  28  id.  186;  May  berry  u.  Bain-  son,  35  id,  229;  Andrews  v.  Planters* 

ton,    2    Harr.    (Del.)    24;    Marsh    v.  Bank,    7   Sm,    &  Mar,   192   (45   Am. 

Tiiompson  Natl.  Bk.  2  111.  App.  217;  Dec.  SOO);  Langan  v.  Hewett,  13  id. 

Davis  V.  Black  well,  5  id.  32;  Beach  122;    Sylversteia    v.    Atkinson,     45 

V.  State  Bank,  2  lud.  488;  Whitmore  Miss.  81;  Bloom  v.    Helm.  53  id,  21; 

V.  Adams,    17   Iowa,    507;    Clark   v.  Kidder   v.   Page,   48  N,  H,  380;  Liv- 

Hyraan,  55  id,  14;  Silvers  r.  Foster,  ingston   v.    Roosevelt,   4  Johns.   251 

9  kan,  56;  Wagnon  v.  Clay,  1  A.  K.  (4  Am.  Dec.  273);  Foot  v.  Sabin.  19 

Mar,  (Ky.)  257;  Chenowith  u  Cham-  Johns.  154;  Schermerhorn  v.  Scher- 

berlin,  6   B.  Mon.   60   (43   Am.  Dec.  merhorn,    1    Wend.    119;  Laverty  v. 

145);  Vredenburg   v.   Lagan,  28   La,  Burr,   1  id,   529;  Boyd  v.   Plumb,   7 

Ann   941;  Darliug   v.  March,  22  Me.  id,    309;  Mercein   i\   Andrus,  10   id, 

184;  Rollins  v.    Stevens,  31   id.  454;  461;  Joyce  v.  Williams,*  14  id.  141; 

361 


g340. 


CONDUCT  OF  THE  BUSINESS. 


and  convenient  for  the  purposes  of  the  business;  no  mere 
benefit  can  suspend  a  restriction  so  essential.' 

The  partner  who  signed  the  firm,  name  without  authority 
is  himself  bound,  the  same  as  if  he  had  signed  his  own 
name.^ 

Wilson  V.  Williarng,    14  id.  146  (28  stacle  to  commerce,    Flemming  v. 

Am.     Dec.    518);    Stall    v.    Catskill  Prescott,  3  Rich.  (S.  Ca.)  L.  007  (45 

Bank,  18  id.  406  (aff.  s.  C.  15  id.  364);  Am.    Dec.  766);  Ex  parte  Gardom, 

Gansevoort  r.  Williams,  14  id.  133;  15    Ves.    286.     And   if    a    firm  lias 

Elliott    V.    Dudley,    19    Barb.    326;  become    surety,    a    partner    cannot 

Mechanics'   Bank   v.  Livingston,   33  alter  the  contract,  as  by  extending 


id.  458;  Fielden  v.  Lahens,  9   Bosw. 
436    (3    Abb.    Dec.    Ill);    Butler    v. 


the   time,   §   341.     A  sole   manager 
under  no  written  articles  and  of  pre- 


stocking,   8    N.    Y.    408;    Chemung  sumed  unlimited  autliority  was  held 

Canal  Bank  u  Bradner,  44   id.  680;  authorized  to  bind  the  firm  by  recog- 

Atlantic  State  Bk.  v.  Savery,  83  id.  nizing  an  agent's   notes,    given    as 

291  (aff.  18  Hun,  36);  Long  v.  Carter,  security  for  a  third  person,  in  Odiorne 

3  Ired.    (N.    Ca.)    L.    238;  Smith   v.  v.    Maxcy,    15    Mass.    39.     In    First 

Loring,  2  Oh,  440 ;  Gano  v.  Samuel,  Natl.  Bk.  v.  Carpenter,  41  Iowa,  518, 

14  id.  592,  600;  Sutton  v.  Irvvine,  12  the  question  was  submitted  to  the 

S.  &  R.  13;  Bell  v.  Faber,  1  Grant's  ju'T    whether    the    guarantying    a 

Cas.     (Pa.)    31;    Bowman    v.    Cecil  customer's    paper    was    within    the 

Bank,  3  id.  33 :  McQuewans  v.  Ham-  scope  of  the   business  of  a  banking 

lin,  35  Pa.  St.  517;  Kaiser  v.   Fen-  firm.     But   see   Selden  v.    Bank    of 

drick,    98  Pa.    St.    538;    Shaaber   v.  Commerce,  3  Minn.  lOG. 
Bushong,    105  id.   514;  Berryhill  v.        iBrettel  v.    Williams,  4  Ex.  623, 

McKee,  1  Humph.  31,  37;  Wlialeyy.  where  one  of  a  firm  of  contractors 

Moody,  2  Humph.  (Tenn.)  49  >;  Bank  guarantied     that     a     subcontractor 

of    Tenn.    v.    Saffarrans,    3   id.   597;  would  pay  for  goods  delivered. 
Scott  V.  Bandy,  2  Head,  197;  Pooley       2  Myatts  v.  Bell,  41   Ala.   223,  232; 

V.  Whitmore,  10  Heisk.  629  (27  Am.  Eliot  v.  Davis,  2  B.  &  P.  338;  Rams- 

Rep.  733):  Huntington  v.   Lyman,  1  bottom  V.Lewis,  1  Camp.  279;  Owen 

D.  Cliip.  (Vt.)  438  (12  Am.  Dec.  716);  v.  Van  Uster.   20  L.   J.  C.  P.  61 ;  10 

Jones  V.  Booth,   10  Vt.  268;  Tomp-  C.  B.  318;    Nichoils  v.  Diamond.   9 

kins  V.    Woodyard,  5  W.  Va.    216;  Ex.  154;  First  Natl.  Bk.  v.  Carpen- 

Avery  v.  Rowell,  59  Wis.  83;  Harris  ter,  34   Iowa,  433;  Silvers  v.  Foster, 

V.  McLcod,   14  Up.   Can.   Q.  B.  164;  9  Kan.  56;  Fowle  v.  Harrington,! 

Henderson   v.    Carvetli,    16   id.   324;  Cusii.    146;  Wiggin  v.  Lewis,  12   id. 

Macklin  v.   Kerr,  28  Up.  Can.  C.  P.  486;  Brown  v.  Broach,  52  Miss.  536; 

90;  McConnell  v.  Wilkins,   13  Ont.  Ferguson  v.    Thacher,    79   Mo.    511; 

App.  438;  Stewart  V.  Parker,  18  New  Merchant   V.   Beiding,  49   How.  Pr. 

Brunswick,    223.     Contra:     that     a  344;  Parker  t;.  Jackson,  16  Barb.  33; 

partner  has  a  right  to  sign  the  name  Stiles  v.  Meyer,  61  Barl).  77;  7  Lans. 

of  the  firm  as  accommodation,  hold-  190;  Hubbard  v.  Matthews,  54  N.  Y. 

ing  the  contrary  rule  to   be  an  ob-  43,  48  (13  Am.  Rep.   562);  Avery  v. 

362 


PARTICULAR  POWERS  BEFORE  DISSOLUTION.         g  351. 

§  350.  The  same  principle  applies  to  using  ths  firm  name  as 
security  in  other  ways.  Thus,  signing  it  as  security  upon  an  ap- 
peal bond  for  others  is  unauthorized,  and  the  signer  alone  is  bound. 
Where  the  firm  is  prosecuting  or  defending  a  suit  on  its  own  be- 
half, one  partner  can  give  necessary  attachment  or  appeal  bonds  in 
tlie  firm  name  or  procure  sureties  upon  the  credit  of  the  firm; ''  but 
where  a  firm  is  acting  for  other  persons,  as  where  attorneys  are 
prosecuting  or  defending  an  action  for  clients,  one  attorney  cannot 
bind  his  partners  b}'  agreeing  to  indemnify  one  who  will  become 
surety  on  an  injunction  bond,*  or  to  indemnify  an  officer  for  mak- 
ing an  attachment  or  arrest,'*  or  promise  to  pay  a  debt  in  order  to 
get  the  client  out  of  jail.* 

It  has  been  held  that,  where  a  firm  is  a  member  of  another  firm, 
a  partner  can  bind  it  hy  a  guaranty  of  a  debt  to  be  incurred  by  the 
latter  in  the  prosecution  of  its  business;  as  where  one  of  a  stage 
company  guaranties  that  another  company  of  which  it  is  a  mem- 
ber will  pay  tolls.* 

In  Andrews  v.  Congar,'  it  seems  to  have  been  held,  where  part- 
ners own  a  majority  of  the  stock  of  a  corporation,  that  it  is  within 
the  scope  of  the  powers  of  each  to  guaranty  a  note  made  by  the  cor- 
poration to  protect  its  stock,  because  for  the  common  benefit,  al- 
though the  articles  of  partnership  forbade  assuming  liabilities 
outside  the  business.  The  report,  however,  does  not  show  whether 
they  owned  the  stock  as  a  firm  or  individually,  nor  the  business  ot 
the  firm,  or  of  the  corporation,  or  how  the  note  benefited  the  firm. 

§  351.  Real  transaction  considered. —  The  form  of  a  note, 
how^ever,  is  of  the  slightest  jjrima  facie  evidence  of  the 
true  relation  of  the  parties,  for  the  actual  debtor  may  appear 
as  surety,  acceptor,  indorser,  etc.,  as  well  as  maker.  Hence, 
where  the  partnership  name  appears  as  surety,  bub  is  not 

Rowell,  59  Wis.  82;  Wilson  i\  Brown,  G  Princeton  &  Kingston  Turnpike 

60nt.  App.  411.     And  see  §§421,  691.  Co.  u.  Gulick,  16  N.  J.   L.    1«1,  1(39. 

1  Charman   v.   McLaue,  1   Oregon  See  Hodges  v.  Ninth   Nat'l  Bk,  54 

339.  Md.  406. 

2Dow  V.  Smith,  8  Ga.  551;  Durant  -Supreme  Ct.  U.  S.  18^-1;  20  Am. 

V.  Rogers,  87  111.  508.  Law  Reg.  N.  S.  328;  Lawyers'  Coop. 

3  White  V.  Davidson,  8  Md.  169.  Book  26,  page  90,  not  reported  in  the 

<  Marsh  t'.  Gould,  2  Pick.  285.  regular  series.     And  see  cases  cited 

6Hasl.ham  v.  Young,  5  Q.  B.  833;  with  this  under  §  370. 

Dav.  «&  Mer.  700. 

363 


§  351.  CONDUCT  OF  THE  BUSINESS. 

really  such,  the  actual  nature  of  the  transaction,  and  not  its 
apparent  cliaracter,  governs. 

Thus  if  the  firm  name  is  indorsed  on  the  note  of  a  third 
person  by  one  partner  apparently  as  security,  but  in  fact  for 
a  debt  of  or  loan  to  the  firm,  all  the  partners  are  boand,^ 

Thus  in  TruUinger  v.  Corcoran,  81^  Pa.  St.  395,  Croft  was  fur- 
nisliins^  goods  to  defendants'  firm,  and  purchasing  the  goods  from 
plaintiff,  and,  by  arrangement  of  all  parties,  plaintiff  furnished  the 
goods  directly  to  the  defendants,  and  were  paid  by  defendants'  notes 
made  to  Croft's  order.  These  notes  were  afterwards  renewed  by 
Croft's  notes  made  to  his  own  order,  on  which  the  defendants'  firm 
name  was  indorsed  by  the  acting  partner,  who  gave  as  a  reason 
that  he  did  not  wish  any  more  of  the  firm's  paper  to  be  out.  This 
was  held  sutficient,  and  that  plaintiff  was  not  put  upon  inquiry  as  to 
the  bona  fides  of  the  notes,  although  the  defendants'  name  appeared 
as  accommodation,  yet  being  in  fact  so  for  their  own  benefit. 

So  a  partner  in  selling  notes  payable  to  the  firm  can  guaranty 
them,"  or  under  the  borrowing  power  maj'  exchange  accommoda- 
tion acceptances.' 

Where  the  financial  partner  of  defendants  exchanged  the 
firm's  note  with  N.,  who  obtained  money  upon  it  from 
plaintiff,  as  the  partners  are  liable  upon  this,  since  plaintiff 
had  no  notice  of  their  credit  being  so  used,  they  were  held 
liable  on  another  note  used  to  take  it  up,  made  by  N.,  on 
which  their  name  appeared  as  indorsers.*  And  where  a 
partner  who  had  made  a  purchase  from  his  firm  gave  it  his 
note,  which  the  firm  indorsed  and  got  discounted,  a  renewal 
of  the  note  by  such  partner  indorsing  the  firm  name  is  not 
giving  the  firm  name  for  his  private  debt,  and  is  in  the  scope 
of  his  power. ^ 


iLangan  v.  Hewett,  13  Sni.  &  Mar.  32  (dictum);  Gano  v.  Samuel,  14  Oh 

(Miss.)    122;  Day  u  McLe(f<l,  18   Up.  593. 

Can.  Q.  B.  256;  Saltmarsli  v.  Bower.  2  Day  u  McLeod,  18  Up.  Can.  Q.  B. 

22  Ala.  221 ;  Bank  of  Commonwealth  256. 

V.  Mudgett,  44  N.  Y.  514  (aff.  45  Barb.  3  g  373. 

663);  Faler  v.  Jordan,  44  Miss.  2^3;  <  Steuben  Co.  Bank  f.  Alburger  (N. 

Winship  v.  B'k  of  U.  S.  5   Pet.  52!>,  Y.  1888),  4  N.  e".  Rep.  311. 

566;  Davis  v.  Blackwell,  5  111.  App.  5  Wilson  v.  Richards,  28  Minn.  337. 

364 


PARTICULAR  POWERS  BEFORE  DISSOLUTION.        §  352. 

§  352.  Bona  fide  holder  protected. —  A  bona  fide  holder  or 
indorsee,  that  is  one  for  value,  in  due  course  of  husiness,  he- 
fore  maturity  and  without  notice,  can  recover  against  the 
firm,  the  scope  of  whose  business  includes  the  issuance  of 
negotiable  paper  or  paper  signed  with  its  name  by  one  part- 
ner, in  fraud  of  the  rights  of  his  copartners.  That  is  to  say, 
the  signature  is  not,  like  a  forgery,  wholly  void;  but  being 
capable  of  ratification,  and  by  one  who  is  a  principal  as  well 
as  an  agent,  is  voidable  only,  and  the  usual  rules  of  mercan- 
tile paper  apply.  That  is  to  say,  if  the  firm's  business  is 
such  that  the  making  of  any  notes  is  in  its  scope,  a  bona  fide 
buyer  can  hold  the  firm,  and  need  not  inquire  whether  the 
note  was  issued  within  the  scope  of  the  business  or  not,  or 
whether  it  was  to  pay  or  secure  a  sepai-ate  debt  of  a  partner, 
or  was  for  the  accommodation  of  a  third  person,  or  for  a  loan 
to  the  signing  partner,  or  in  au}^  other  way  in  fraud  of  the 
rights  of  copartners.  The  doctrine  is  also  frequently  rested 
on  the  principle  that  when  one  of  two  innocent  parties  must 
suffer,  the  loss  falls  upon  the  one  who  has  put  it  in  the 
power  of  the  guilty  person  to  perpetrate  the  fraud.  ^ 

But  if  the  scope  of  the  business  does  not  authorize  the  making  of 
notes  by  one  partner,  the  paper  is  as  invalid  in  the  hands  of  an  in- 

1  Lewis  V.  Reilly,  1  Q.  B.  349 ;  Bush  Bank,    18  Wend.  466  faff'g,  s.   C.  as 

V.    Crawford,    7    Bankr.    Reg.    299 ;  Catskill  Bk.  v.  Stall,  15  id.  864) ;  Weils 

Mauldin  v.  Branch  Bk.  at  Mobile,  3  v.  Evans,    22  id.  324;  Lockw.   Rev. 

Ala.  502,  513;  Knapp  v.  McBride,  7  Cas.  390  (rev.  20  Wend.  251);  Austin 

id.  19;  Rich  v.  Davis,  4  Cal.  23;  s.  C.  v.  Vaudermark,  4  Hill,  259;  Mechan- 

6  id.  141 ;  Beach  v.  State  Bank,  3  Ind.  ics'  Bank  v.  Foster,  19  Abb.   Pr.  47  ; 

488;  Freeman  v.   Ross,  15  Ga.   252;  44  Barb.  87;   29  How.  Pr.  40S;  First 

Wright  V.  Brosseau,  73  111.  381 ;  Wal-  Nat.    Bk.  v.  Morgan,    73  N.  Y.  593 

worth  V.  Henderson,  9  La.  Ann.  339;  (aff'd,    6   Hun,    346);  Atlantic   State 

Waldo  Bank  v.  Lumbert.  16  Me.  416;  Bank  v.  Savery,  82  N.  Y.  291  (aff"g. 

Boyd  V.  McCann,  10  Md.  118;  Hop-  18  Hun,  36);  Cotton  v.  Evans,  1  Dev. 

kins  V.  Boyd,   11  id.  107;  Boardman  &  Bat.  Eq.  284;  Sedgwick  v.  Lewis, 

V.   Gore,  15  Mass.    331;  Connecticut  70  Pa.  St.  217;  Mooreheadu  Gilmore, 

River  Bk.   v.  French,  6  Allen,   313;  77  id.  118;  18  Am.   Rep.  435;  Parker 

Blodgett  V.    Weed,    119    Mass.    215;  v.    Burgess,    5  R.  I.  277;  Hawes  v. 

Nichols  V.  Sober,  38  Mich.  678 ;  Bloom  Dunton,  1  Bailey  (S.  Ca.),  146 ;  19  Am. 

V.  Helm,  53  Miss.  21;  Murphy  V.  Cam-  Dec.  663;  Duncan  v.  Clark,  2  Rich, 

den,  18  Mo.  116;  Livingston  v.  Roose-  L.  587;  Roth  v.  Colvin,  32  Vt.  125. 
velt,  4  Johns.  251 ;  Stall  v.   Catskill 

•    365 


§  353.  CONDUCT  OF  THE  BUSINESS. 

nocent  lioldcr  for  value  as  it  was  in  the  hands  of  the  original  payee. 
The  buyer  of  a  note  signed  in  the  name  of  a  non-trading  firm  buys 
at  his  perih* 

§  353.  who  is  a  bona  fide  buyer. —  As  already  said, 

the  rules  of  mercantile  paper  apply  to  deterniiiie  who  are 
entitled  to  the  rights  of  bona  fide  purchaser.  Thus  a  pur- 
chaser after  maturity  is  not  a  bona  fide  buyer  in  this  sense.  ^ 
But  if  his  assignor  was  a  bona  fide  holder,  the  assignee  or 
indorsee  gets  the  assignor's  title,  though  he  himself  knew  of 
the  fraud  or  want  of  authority.^ 

In  Grubb  v.  Cottrell,  62  Pa.  St.  23,  H.,  a  member  of  two  firms, 
without  the  knowledge  of  his  copartners  in  either,  drew  a  draft  in 
the  name  of  H.  &  G.  on  a  person  who  accepted  it  in  favor  of  H.,  C. 
&  E.,  and  indorsed  it  in  their  names  and  procured  a  bank  to  dis- 
count it  and  kept  the  proceeds.  The  bank  sued  the  indorsevs,  H., 
C.  &  E.,  and  C.  and  E.  paid  the  draft  and  now  sue  G.  for  contribu- 
tion. It  was  held  that  the  money  got  by  H.  from  the  discount  was 
the  money  of  H.,  C.  &  E.;  the  other  parties  were  accommodation 
parties  for  H.,  C.  &  E.,  and  though  H.  intended  to  defraud  them  all, 
he  only  defrauded  H.,  C.  &  E.,  and  C.  and  E.  did  not  get  the  bank's 
superior  title  as  innocent  purchasers,  but  only  their  owi^  old  title 
back  again,  and  could  not  recover. 

A  payee's  belief,  on  loaning  money,  that  it  was  for  the  private 
use  of  the  partner,  does  not  prevent  his  recovery  on  the  note  signed 
in  the  firm  name,  if  the  loan  really  was  for  the  firm  and  used  for 
its  benefit;  an  intent  to  do  an  unjust  act  being  of  no  effect  unless 
the  fact  correspond  with  the  intention.* 

AVhere  a  partner  states  to  the  lender  that  he  desires  the  money  in 
order  to  retire  the  notes  of  certain  customers  without  his  copart- 
ners' knowledge,  this  is  notice  that  he  is  giving  the  firm  name  in 
accommodation  by  making  his  copartners  believe  that  the  notes  are 
paid,  and  the  lender  cannot  recov^er  on  the  partnership  note  from 
them."  And  where  C,  of  the  firm  of  C.  &  U.,  made  an  unauthorized 
note  in  the  firm  name  to  V.,  who  used  it  to  take  up  a  note  made  by 
C,  on  which  he  (V.)  was  an  indorser,  the  bank  which  held  the 

1  §  345.  *  Hamilton  v.  Summers,  12  B.  Mon. 

2  Rich  V.  Davis,  4  Cal.  23;  Freeman    11 ;  54  Am.  Dec.  509. 

r.  Ross,  15  Ga.  252.  oMcConnell    v.   Wilkins,    13  Ont. 

»Boyd  V.  McCaun,  10  Md.  118.  App.  438. 

366 


PARTICULAR  POWERS  BEFORE  DISSOLUTION.       '§  354. 

former  note  is  affected  with  notice  and  U.  is  not  liable  on  the 
note.' 

Knowledge  of  the  indorsee  that  the  note  made  in  the  firm  name 
had  been  given  to  pay  for  land  is  not  sufficient  notice  that  it  was 
not  authorized,  for  partners  often  buy  land.'* 

The  fact  that  plaintiff  knew  that  the  guilty  partner  had  previ- 
ously given  firm  notes  for  his  private  purposes  is  admissible,  as 
tending  to  show  plaintiff's  knowledge  that  the  note  in  suit  was  un- 
authorized.* But  the  mere  fact  of  a  lender  having  had  previous 
dealings  with  such  partner  on  his  individual  account,  but  in  his 
own  name,  carries  no  notice  of  an  intent  to  appropriate  the  pro- 
ceeds of  a  partnership  note  discounted  b}''  the  lender.* 

In  Clark  v.  Johnson,  90  Pa.  St.  442,  0.,  the  acting  partner  of  J. 
&  0.,  dealers  in  drugs,  paints,  etc.,  bought  of  plaintiff,  who  lived  in 
another  city,  four  barrels  of  spirits  at  differeut  times  in  the  name  of 
the  firm.  At  the  time  of  buying  one  of  the  barrels  he  ordered  it 
sent  to  Y.  &  Co.,  a  firm  in  which  he  was  a  partner  but  J.  was  not, 
and  it  never  was  entered  on  J.  &  O.'s  books;  the  court  said  that,  iu 
view  of  a  frequent  custom  of  dealers  in  merchandise  to  have  goods 
sent  to  a  customer  direct  from  the  person  from  whom  they  them- 
selves buy,  the  fact  of  such  order  creates  no  presumption  to  put  a 
prudent  vendor  on  inquiry,  and  J.  is  liable  with  0.  for  the  pur- 
chase. 

§  354.  negligent  buyer  of  paper. — In  some  cases  it 

has  been  held  that,  although  the  holder  did  not  have  actual 
notice,  but  by  the  exercise  of  proper  diligence  would  have 
had  notice,  or  where  the  facts  would  have  put  him  on  in- 
quiry but  for  his  culpable  negligence,  he  cannot  claim  to  be 
a  bona  fide  buyer.* 

But  on  this  question  treatises  on  bills  and  notes  should 
be  examined,  and  partnership  paper  examined  by  the  light 
of  the  general  law  of  mercantile  paper,  the  rules  of  which 
have  been  of  late  years,  in  most  jurisdictions,  changed  in 
favor  of  its  free  circulation  and  the  necessities  of  commerce, 

1  Union  Bank  v.  Underbill,  21  Hun,  <  Hayward  v.  French,  12  Gray,  453. 
178.  ^N.  Y.  Firemen's  Ins.  Co.  v.  Ben- 

2  Dudley  v.  Littlefield,  21  Me.  418.    nett,  5   Conn.  574,  580  (13  Am.  Dec. 
'  Eastman  i>.  Cooper,  15  Pick.  276;    109);    Cotton    v.    Evans,    1   Dev.   &. 

26  Am.  Dec.  600.  Bat.  Eq.  284. 

367 


§  350.  CONDUCT  OF  THE  BUSINESS. 

SO  as  to  exclude  evidence  of  slight  circumstances  putting  a 
person  upon  inquiry  to  affect  his  title.  Thus,  mere  circum- 
stances which  might  have  aroused  a  prudent  buyer's  sus- 
picion are  not  sufficient  to  defeat  the  buyer's  claim  upon  the 
firm.' 

In  Roth  V.  Colvin,  32  Yt.  125,  the  purchaser  of  notes  signed  by 
a  firm  knew  that  the  firm  was  in  New  York  and  were  wharfino-ers, 
needing  but  little  money,  and  that  the  partner  living  in  Vermont 
was  not  an  active  partner,  and  that  the  payee  was  insolvent,  and 
the  notes  were  for  a  large  amount  and  for  even  numbers.  A 
finding  that  the  purchaser  had  not  exercised  due  diligence  to  ascer- 
tain whether  the  firm  and  the  Vermont  partner  had  authorized 
the  notes  was  held  proper. 

In  Royal  Canadian  Bank  v.  Wilson,  24  Up.  Can.  C.  P.  362,  the 
firm's  acceptance  was  in  the  handwriting  of  the  partner  who  drew 
the  bill,  and  the  firm  was  located  at  a  distant  place,  but  the  draft, 
being  dated  on  the  same  day,  shows  that  the  buyer  knew  the  ac- 
ceptance was  written  by  tlie  drawer. 

§  355.  broker  is  not  agent  of  buyer.— A  note  broker 

in  whose  hands  the  note  was  placed  by  the  payee  for  sale 
is  agent  of  the  seller  and  not  of  the  buyer,  though  the 
buyer  has  had  previous  dealings  with  him;  hence,  altbough 
purchasing  direct  from  the  payee  would  have  shown  that 
the  defendants  were  sureties  only,  their  firm  name  being 
indorsed  after  that  of  the  payee's  by  a  partner  common  to 
both  firms,  persons  buying  of  note  brokers  need  not  inquire 
whom  they  represented;  it  would  hamper  commerce.^ 

§356.  usury. —  That  the  purchaser  from  a  broker 

of  a  note  signed  by  the  firm  name  buys  it  at  a  usurious 
rate  of  discount  does  not  afford  a  reasonable  cause  to  sus- 
pect fraud  any  more  than  if  the  partner  had  sold  it,'  nor 

1  Freeman's  Nat'l   Bk.    v.  Savery,  Harmou,     14    Me.    271;    Freeman's 

127  Mass.  75 ;  Stimson  v.  Whitney,  Bank  v.   Savery,   127  Mass.  75 ;  Red- 

130  id.  591,  595;  Nichols  v.  Sober,  38  Ion  r.  Churchill,  73  Me.  146;  40  Am. 

Mich.  678;  Walker  v.  Kee,  14  S.  Ca.  Rep.  345;  14  Centr.  L.  J.  412;  Parker 

142;  Cotton  v.  Evans,  1  Dev.  &  Bat.  v.  Burgess,  5  R.  I.  277. 
Eq.  234.  3  Connecticut  River  B'k  v.  French, 

2Mooreheadv.  Gilraore,  77  Pa.  St.  6  Allen,   313;  Sprague   v.   Zunts,  18 

118;    18  Am.  Rep.   435;  Emerson  v.  Ala.  383. 

368 


PARTICULAR  POWERS  BEFORE  DISSOLUTION.        §  358. 

that  the  note  calls  for  usurious  interest^  and  is  payable  on 
demand.* 

§  357.  renewals. —  Where  a  firm  note,  signed  as  accom- 
modation by  a  partner,  is  in  the  hands  of  an  innocent  bnyer  and 
-enforcible  by  him,  renewals  of  the  same  with  accrued  interest, 
made  by  the  same  partner  at  a  time  when  such  holder  had  notice 
of  the  defects  in  the  note,  were  held  also  enforcible,  for  if  not,  his 
title  in  the  original  would  be  made  valueless,' 

In  Mix  V.  Muzzy,  28  Conn.  186,  plaintiff  signed  an  accommoda- 
tion note,  payable  to  the  firm  of  M.  &  H.,  and  delivered  it  to  M., 
supposing  it  was  to  be  us'd  for  the  firm's  benefit,  and  M.  made  the 
firm's  note  to  him  in  exchange,  and  gave  his  note  to  one  6.  in  pay- 
ment of  a  private  debt,  G.  knowing  all  the  facts.  Plaintiff,  learn- 
ing the  fraudulent  use  of  his  note,  took  it  up  when  due  by  giving 
another  to  G.  direct,  and  surrendered  to  M.  the  note  of  M.  &  H., 
receiving  back  another  note  made  by  M.  in  the  name  of  M.  &  H. 
Plaintiff  paid  his  note  to  G.  Avhen  it  came  due  and  sued  M.  &  H. 
Held,  1st,  G.  could  not  have  sued  the  firm  or  plaintiff  ou  the  first 
note;  it  was  a  fraud  on  the  firm.  2d.  Plaintiff,  knowing  all  the 
facts  when  he  gave  the  second  note  and  took  a  new  one,  cannot  re- 
cover on  the  latter.  3d.  As  he  knew  he  was  not  bound  to  pay  G. 
on  the  original  note,  his  doing  so  gave  him  no  right  against  the 
firm  as  for  money  paid  to  its  use. 

§  358.  Notice  from  form  of  the  paper. —  The  paper  itself 
may  convey  notice  that  the  firm  are  merely  sureties  upon  it, 
either  by  so  stating,  or  by  the  position  of  the  name  upon  the 
paper,  as  where  it  is  not  in  the  chain  of  title,  which  is  as 
distinct  a  notice  that  their  liabihty  is  secondary  as  if  the 
-word  sureties  had  been  appended.  In  any  of  these  cases  it 
is  manifest  that  no  one  could  be  an  innocent  buyer.  Thus 
the  word  "  sureties  "opposite  the  name  of  the  firm  is  notice 
to  every  buyer  of  the  paper  that  the  signature  will  not  bind 
the  firm  unless  authorized  by  all  the  partners.* 

So  in  National  Security  Bank  v.  McDonald,  127  Mass.  82,  where 
K.,  on  procuring  plaintiif  to  discount  for  him  a  note  made  by  G., 

iHurd  V.  Haggerty,  24  III.  171;  *  Foot  v.  Sabin,  19  Johns.  154  (10 
Blodgettu.  Weed,  119  Mass.  215.  Am.  Dec.    20S);  Rollins  v.   Stevens, 

2  Blodgett  V.  Weed,  supm.  31  Me.  454 ;  Marsh  v.  Thompson  Nat'l 

s  Hopkins  v.  Boyd,  11  Md.  107.  Bk.  2  111.  App.  217. 

Vol.  1  —  24  369 


§  35 S.  CONDUCT  OF  THE  BUSINESS. 

gives  plaintiff  as  collateral  a  note  made  by  the  defendant  partncr- 
sLip,  payable  to  K.,  on  the  back  of  which  K.  had  signed  a  mem- 
orandum, "this  note  is  held  by  me  for  a  note  signed  by  G.,"  this 
memorandum  was  held  to  carry  notice  to  plaintiff  that  the  partner- 
ship note  was  made  as  security  only,  and  that  the  consent  of  all 
the  partners,  or  that  it  was  given  in  the  course  of  the  firm's  busi- 
ness, is  necessary. 

That  an  indorsement  of  the  firm^s  name  is  not  in  the  chain  of 
title  carries  the  presumption  that  it  is  signed  for  accommodation  or 
as  security  only.* 

Thus  in  Wilson  v.  Williams,"  D.  purchased  goods,  and  gave  in 
payment  to  the  seller  his  note,  on  which  W.,  of  W.  &  Co.,  indorsed 
the  name  of  W.  &  Co.  This  carries  notice  to  the  payee  that  W.  & 
Co.'s  signature  is  for  accommodation  or  security.  That  the  payee 
parted  with  his  goods  on  the  faith  of  it  is,  of  course,  immaterial, 
for  the  liability  of  the  other  partners  of  W.  &  Co.  is  a  question  not 
of  good  faith,  but  of  contract. 

So  in  National  Bank  of  Commonwealth  v.  Law,^  a  partner  made 
a  note  in  his  individual  name  payable  to  a  third  person,  and  in- 
dorsed the  name  of  the  firm  above  the  payee's  indorsement.  This 
carries  notice  that  the  indorsement  is  for  accommodation,  and  puts 
the  payee  on  inquiry. 

So  where  a  borrower  or  purchaser  gives  a  draft  on  a  firm  which 
is  accepted  by  one  partner,  the  lender  or  seller  has  notice  that  the 
firm  name  is  signed  as  surety .■* 

Hence,  also,  if  paper  on  which  the  name  of  a  firm  is  indorsed  is 
received  from  the  maker  himself,  or  from  a  broker  known  by  the 
buyer  to  be  selling  it  for  the  maker,  this  is  notice  that  the  firm's 
name  is  signed  as  accommodation." 

In  Mecutchen  v.  Kennady,  27  N.  J.  L.  230,  a  note  in  the  firm 

1  Bowman  v.  Cecil  Bank,  3  Grant's  8127  Mass.  73;  S.  P.  Moynahan  v. 
Cas.  (Pa.)  33;  Harris  v.  McLeod,  14    Hanaford,  42  Mich.  329. 

Up.  Can.  Q.  B.  164;  St.  Nicholas  4  Joyce  v.  Williams,  14  Wend.  141, 
Bank  v.  Savery,  13  Jones  &  Sp.  (45  explained  in  Stall  v.  Catskill  Bank, 
N.  Y.  Super.)  97;  per  Walworth,  C,,  18  Wend.  466;  Bloom  v.  Helm,  53 
in  Stall  r.  Catskill  Bank,  18  Wend.  Miss.  21.  It  must  be  rememhered  that 
466,  478;  Chenowith  v.Chamberlin,  6  a  partner  can  bind  the  firm  by  ac- 
B.  Mon.  60  (43  Am.  Dec.  145).  And  a  cepting  a  draft  on  it  in  his  own  name, 
seal  has  been  held  to  to  import  notice  §  441. 
of  want  of  authority.     See  §  423.  5  Hendrie  v.  Berkowitz,  87  Cal.  113; 

2  14  Wend.  146  (28  Am.   Dec.  518).    Tevis  v.  Tevis,  24  Mo.  535  {dictum). 

370 


PARTICULAR  POWERS  BEFORE  DISSOLUTION.        §  358. 

name  pa3'able  to  a  third  person  and  indorsed  by  liira  was  used  by 
a  partner  to  pay  his  own  debt.  This  was  presumed  in  fraud  of  the 
firm.  Had  the  creditor  received  it  from  the  payee  this  might  have 
been  otherwise;  but  in  the  hands  of  the  partner,  even  if  he  got  it 
from  the  payee,  the  presumption  is  that  the  firm's  name  is  for  ac- 
commodation or  the  property  of  the  firm.  Bat  contra^  if  the  maker 
is  one  of  the  partners,  and  the  note  payable  to  the  firm  is  indorsed 
witli  its  name,  for  the  note  is  then  presumably  the  property  of  the 
firm,  and  as  any  partner  has  the  power  to  dispose  of  property  of 
the  firm  when  not  palpably  so  doing  for  his  own  purposes.' 

In  Bank  of  Commerce  v.  Selden,  3  Minn.  155,  a  check  was 
drawn  by  a  member  of  a  banking  firm  on  the  firm,  which  he  ac- 
cepted in  the  firm  name,  to  get  money  from  a  third  person  who 
claimed  that  the  loan  was  for  the  firm  and  not  for  the  partner.  As 
a  check  purports  to  be  on  the  drawer's  own  deposit,  it  is  presumably 
a  loan  to  the  partner,  and  is  not  like  a  note  made  b}''  a  partner  to 
the  order  of  the  firm  on  which  he  indorses  the  firm's  name. 

But  where  the  unauthorized  indorsement  of  the  firm  name  is  in 
the  chain  of  title,  a  purchaser  of  the  paper  from  a  person  other 
than  one  of  the  parties  to  it,  prior  to  the  unauthorized  indorsement, 
has  no  notice  from  the  paper  itself.  Thus,  in  Redlon  v  Churchill,* 
a  partner  made  a  note  in  his  own  name  to  his  own  order,  then  in- 
dorsed his  own  name,  and  then  indorsed  his  firm's  name  after  his 
own,  and  delivered  it  to  a  broker  to  sell,  from  whom  plain tiif  bought 
it.  Here  the  firm's  name  being  in  the  chain  of  title,  the  form  of 
the  note  gives  no  notice,  and  the  broker  may  be  supposed  by  the 
buyer  to  be,  if  not  the  owner,  the  agent  of  the  last  indorser, 
and  the  fact  that  the  maker  was  a  member  of  the  firm  of  last  in- 
dorsers  affords  no  conclusive  presumption. 

In  Moorehead  v.  Gilmore,^  A.  made  a  note  to  W.  &  Co.,  who  in- 
dorsed it,  and  then  the  name  of  M.,  A.  &  Co.  was  indorsed  by  A., 
and  the  paper  was  placed  in  the  hands  of  a  third  person,  who  sold 
it  to  plaintiff.  The  fact  that  the  name  of  A.  occurred  as  maker  and 
as  a  member  of  the  second  indorser  firm,  and  in  the  same  hand- 

1  Manning  v.  Hays,  6  Md.  5;  Tevig       273  Me.  146  (40  Am.  Rep.   345;  14 
V.  Tevis,  supra;  Wait  v.  Thayer,  118    Centr.  Law  Jour.  412). 
Mass.  473,  where  the  maker  also  filled       3  77  Pa.  St.  118,  123  (18  Am.  Rep. 
up  blanks  in  the  plaintiff's  presence,    435). 
but    it   was    left  to  a    jury  to  say 
whether  there  was  notice. 

871 


§  3  GO.  CONDUCT  OF  THE  BUSINESS. 

writing,  was  held  not  sufficient  to  put  the  huj'er  on  notice  that  the 
firm  name  was  misused,  or  that  the  partner  was  acting  in  bad  faith, 
for  the  power  of  a  partner  in  a  trading  tirni  to  raise  money  for  the 
firm  extends  to  indorsing  as  well  as  making  notes. 

§  359.  member  of  several  firms. —  A  member  of  sev- 
eral firms  may  draw  and  indorse  the  same  paper,  as  the  repre- 
sentative of  each,  without  affecting  a  holder  with  suspicion 
that  his  action  in  behalf  of  one  firm  is  in  bad  faith  towards 
another. 

In  Freeman's  Natl.  Bk.  v.  Savery,  127  Mass.  75,  the  note  of  an 
individual  partner  payable  to  his  firm,  with  their  names  indorsed 
thereon,  was  indorsed  after  their  names  by  such  partner  with  the 
name  of  the  defendant  firm,  in  which  also  he  was  a  member,  in 
fraud  of  their  rights.  The  fact  that  the  holder  purchased  the  note 
from  a  broker  or  from  another  member  of  the  payee  firm  does  not 
put  the  holder  on  notice  of  the  fraud  on  the  defendant  firm,  for  he 
may  fairly  assume  that  the  person  selling  the  paper  holds  it  indi- 
vidually by  blank  indorsement  from  the  last  indorsing  firm.' 

In  Walker  v.  Kee,  14  S.  Ca.  113,  Kee  had  made  notes  payable  to 
the  firm  of  S.  &  C,  on  which  C.  indorsed  the  firm  name  of  the 
payees,  and  then,  as  member  of  another  firm  of  C,  A.  &  Co.,  trans- 
ferred them  to  plaintiff  as  security  for  advances  to  C,  A.  &  Co. 
Phiintiff 's  title  is  good  against  assignees  for  the  creditors  of  S.  &  C, 
for  he  could  assume  that  S.  &  C.  transferred  the  notes  to  C,  A. 
&Co. 

§  360.  illustrations. —  In  Chemung  Canal  Bank  v.  Brad- 

ner,  41  N.  Y.  680,  Carroll,  of  Bradner  &  Carroll,  a  firm,  dissolved 
without  notice  of  dissolution,  of  wliich  he  had  been  the  active  part- 
ner, signed  its  name  as  drawers  to  a  draft,  of  which  the  drawee, 
payee  and  amount  were  left  blank,  and  delivered  it  to  Lowrey,  of 
Lowrey,  Strong  &  Co.,  for  the  accommodation  of  the  latter  firm. 
Lowrey  took  it  to  the  plaintiff  for  discount,  and  in  plaintiff's  pres- 
ence filled  in  the  names  of  Lowrey,  Strong  &  Co.  as  drawees,  him- 
self as  payee,  and  inserted  the  amount,  and  plaintiff  discounted  it, 
and  Lowrey,  Strong  &  Co.  afterwards  accepted  the  draft  and  received 

1  See,  also,  Stimson  v.  AVhitney,  Stone,  3  McLean,  173,  where  he  drew 
130  Mass.  591 ;  Ihmsen  v.  Negley,  25  a  bill  in  the  name  of  one  firm  on  tlie 
Pa.  St.  297;  Miller  v.  Consolidation  other,  payable  to  himself,  and  ac- 
Bank,   48  Pa.   St.   514;  BaLcock  v.    cepted  it  in  the  drawee's  name. 

373 


PARTICULAR  POWERS  BEFORE  DISSOLUTION.        §  360. 

tlie  avails  of  it,  and  the  drawers,  Bradner  &  Carroll,  were  held  liable. 
For  had  Bradner  signed  the  drawers'  name,  and  Carroll  given  it  to 
Lowrey,  certainly  Bradner  &  Carroll,  the  drawers,  would  have  been 
liable,  and  the  bank  had  therefore  no  reason  to  suppose  that  Brad- 
ner &  Carroll  did  not  authorize  it;  and  there  is  nothing  in  the  fact 
of  Lowrey's  possession  to  show  that  it  was  made  for  his  or  his  firm's 
accommodation;  for  the  natural  inference  was  that  the  drawers' 
desired  to  transfer  to  him  their  funds  in  the  hands  of  Lowrey, 
Strong  &  Co.,  or  desired  him  to  raise  for  them  the  amount  of  the 
draft.' 

In  Darlington  v.  Garrett,  li  111.  App.  238,  a  draft  in  the  firm 
name  on  a  debtor  of  the  firm,  payable  to  one  partner,  was  held 
binding;  because  each  partner  has  power  to  collect  debts,  although 
the  partner  absconded  with  the  money,  and  although  the  draft  was 
for  more  than  the  drawee  owed,  and  was  therefore  pro  tanto  a  bor- 
rowing, and  the  debtor  could  recover  of  the  firm  the  overpayment. 
And  that  the  fact  that  the  draft  was  drawn  away  from  the  home 
office  in  another  city  has  nothing  suspicious  in  it,  to  put  the 
drawee  on  inquiry.  The  court  give  the  additional  reason  for  the 
shape  of  the  paper  not  being  notice,  namely,  that  the  paj-ee  part- 
ner might  ba  borrowing  to  repay  himself  an  advance  to  the  firm. 
But  is  not  this  latter  reason  objectionable,  for  it  assumes  that  a 
person  may  pay  a  partner  for  the  purpose  of  enabling  him  to  ap- 
propriate the  amount,  and  convert  joint  into  separate  property, 
independent  of  the  consent  of  the  copartners?  * 

In  Adams  v.  Ruggles,  17  Kan.  237,  a  note  in  the  firm  name, 
made  by  one  partner,  payable  to  his  own  order,  and  indorsed  by  him 
to  the  plaintiff,  was  held  presumptively  valid  against  the  firm,  and 

1  See,  also,  Tutt  v.  Addams,  24  Mo.  the  firm's  benefit,  and  discounted  by 

186,  where  D.  &  T.  S.  McDonnell  a  plaintiff,  who  had  discounted  previ- 

firm,   paid  a  debt  due  by  them  to  ous  similar  notes,  which   had  been 

plaintiff,    by    a     draft     drawn     on  paid,  was  held  good    in   his   hands 

McDonnell  &  Addams,   which   was  without  proof  of  assent,  in  Bank  of 

accepted   in   their  names   by  T.    S.  Commoawealth  v.  Mudgett,  44  N.  Y. 

McDonnell,   who  was   a   partner  in  514  (afifg.  45  Barb.  663).     But  a  simi- 

botli  firms.     This  was  held  not  to  be  lar  note  was  held  bad,  in  Davis  v. 

notice  to  the  creditor  of  an  improper  Blackwell,  5  III.  App.  33. 
use  of  the  acceptors'  names.     A  note       2  See   on   this  latter    point   Royal 

made   by  a   partner  individually  to  Canadian   Bank  v.    Wilson,    24  Up. 

his  own  order,  on  which  he  indorsed  Can.  C.  P.  362;  Ex  parte  Darlington 

the  firm's  name,  stating  it  to  be  for  Banking  Co.  4  DeG.  J.  &.  S.  581. 

373 


§  3G1.  CONDUCT  OF  THE  BUSINESS. 

collectible  out  of  their  insolvent  estate,  in  the  absence  of  evidence 
rebutting  the  presumption;  but  the  creditor  of  an  individual  part- 
ner, recovering  from  him  in  paj^ment  a  note  of  the  firm,  payable  to 
the  debtor's  order,  is  of  course  not  a  bona  fule  holder  as  against  the 
firm.' 

From  the  fact  that  a  note  is  signed  as  maker  by  one  partner,  who 
misappropriated  the  proceeds,  and  also  by  the  firm  name  after  his, 
as  co-makers,  no  inference  can  be  drawn  that  the  latter  are  sure- 
ties.* But  this  fact,  on  a  note  reading  "  I  promise,"  was  regarded 
a  circumstance  to  be  considered  in  connection  with  others  to  as- 
certain if  the  plaintiff  should  have  taken  notice.' 

§  361.  Burden  of  proof;  presumed  given  for  firm. —  As- 
suming the  firm  to  be  one  in  which  each  partner  has  the 
power  to  use  the  joint  name  on  mercantile  paper  for  the 
purposes  of  the  firm,  the  firm  name  on  such  paper  is  pre- 
sumptively placed  there  by  authority  ;  if  as  makers,  it  is 
presumptive  evidence  of  a  joint  debt ;  if  as  indorsers  in  the 
chain  of  title,  it  is  presumptive  evidence  of  a  transfer  by  the 
firm,  or  by  one  partner,  for  partnership  purposes,  or  Vv^ith 
authority.  The  fact  of  good  faith  between  the  partners,  or 
that  the  name  was  used  as  a  joint  undertaking  in  the  regu- 
lar course  of  business,  is  presumed;  that  is,  the  note  is  taken 
to  be  what  it  purports  to  be,  and  the  burden  of  proof  is  on 
the  defendants,  the  partners,  to  show  the  contrary;  as,  for 
example,  if  the  credit  or  name  of  the  firm  was  used  by  the 
signing  partner  to  pay  his  own  debt,  or  as  accommodation 
or  security  for  others,  or  to  obtain  a  loan  for  himself,  or  is  for 
a  purchase  or  a  purpose  outside  the  scope  of  the  business,  this 
is  matter  of  defense,  and  the  burden,  therefore,  up  to  this 
point,  is  upon  the  partners  resisting  payment  to  show  this 
state  of  facts  and  the  payee's  knowledge  of  it.* 

j     1  Gale  V.  Miller,  54  N.  Y.  536.  Dearing,    41   id.  283;    Ensminger  v. 
2Sylverstein  v.  Atkinson,  45  Miss.  Marvin,  5  Blackf.  210;  Miller  v.  Hiues, 
81.  15  Ga.  197,  200;    Gregg  v.  Fisher,    3 
3  In  SlierwoofI  v.   Snow,  46  Iowa,  111.  App.  261 ;  McMiillan  u.  Mackenzie, 
481  (2  5  Am.  Rep.  155).  2  G.  Greene  (Iowa).  308;    Adams  v. 
<LeRoy  v.  Johnson,  2  Pet.  186,  197;  Ruggles,  2-7  Kan,  237;  Deitz  v.  Reg- 
Jones  V.  Ri  es,  3  Ala.  11;  Knapp  v.  nier,  17  id.  94;  Lindh  v.  Crowley,  29 
McBride,    7  id.    19,   27;  Jemison  v.  id.  756;  Rochester  t;.  Trotter,  1  A.  EI. 

374 


PARTICULAR  POWERS  BEFORE  DISSOLUTION.        §  3G2. 

§  3G2.  shifting  of  tins    presumption. — When   the 

firm  is  sued  upon  their  signature  placed  upon  an  instrument 
by  one  partner  in  fraud  of  the  firm,  whether  it  be  for  his 
separate  debt  or  for  the  accommodation  of  another,  or  for  a 
purpose  outside  of  the  scope  of  the  business,  and  the  other 
partners  make  the  issue  of  want  of  authority,  the  instru- 
ment, under  the  foregoing  authorities,  not  being  presumed 
to  have  been  issued  for  a  separate  debt,  or  as  security,  or  for 
other  unauthorized  purpose,  but  being  taken  prima  facie 
to  represent  a  partnership  transaction,  the  partners  first  re- 
but this  presumption  by  showing  the  fact  that  it  was  not  on 
a  partnership  consideration.  Frequently  the  paper  will 
speak  for  itself,  as  already  shown;  and  so  also  if  given  for 
an  individual  debt  the  creditor  cannot  fail  to  know  the  want 
of  authority;  or  if  the  partnership  is  not  a  commercial  or 
trading  oqe,  this  fact  is  notice  that  a  note  not  assented  to 
by  all  is  unauthorized.  This  proof,  then,  having  been  given, 
and  the  presumption  in  favor  of  the  regularity  of  the  in- 
strument rebutted,  it  devolves  upon  the  holder,  if  he  is  not 
an  innocent  buyer  before  maturity,  without  notice,  to  prove 
that  the  partners  authorized  the  issue  of  the  paper  or  rati- 
fied it  subsequently. 

Mar.  (Ky.)  54;  McGowan  v.  Bank  of  Davis  v.  Cook,  14  Nev.  2G5;  Drake  v. 

Ky.  5  Litt.  271;  Magill  v.  Merrie,  5  B.  Elwyn,  1  Caines,  184;  Doty  v.  Bates, 

Men.  168;  Hamilton  v.  Summers,  12  11  Johns.  544;  Vallett  v,  Parker,  6 

id.  11  (34  Am.  Dec.  509);  Walworth  Wend.  ■615;  Whitaker  v.  Brown,  16 

V,  Henderson,  9  La.  Ann.  o39;  Waldo  id.     505;     Farmers',     etc.     Bank    v. 

Bank  »'.  Greeiy,  16  Me.  419;   Barrett  Butchers',  etc.    B'k,   16  N.   Y.    125, 

V.  Swann,  17  id.    ISO;  Davenport  v.  lo5;  First  Nat'l  B'k  v.  Morgan,  73  N. 

Davis,  22  id.  24;  Thurston  v.  Lloyd,  Y.  593  (aff.  6  Hun,  346);  Nat'l  Union 

4  Md.  283;  Manning  v.  Hays,  6  id.  5;  B'k  v.  Landon,  66  Barb.   189;  Cotton 

Porter  v.   White,  39  id.  613;  Manu-  v.  Evans,  1  Dev.  Sc  Bat.  (N.  Ca.)  Eq. 

facturer.s',  etc.   Bank  v.  Winship,  5  284;    CiiafRn  v.   Challiu,    2   id.  255; 

Picii.    11;  Littell   v.  Fitch,  11   Mich.  Foster  v.  Andrews,  2  Pa.  160;  Hogg 

525;    Carrier  v.  Cameron,  31  id.   873  r.  Orgill,  34  Pa.  St.  344;  McKinney  v. 

(18  Am.  Rep.  192);    Robinson  v.  Al-  Bradbury,  Dallam  (Tex.),  441;   Cro- 

dri(>ge,  34  Miss.  352 ;  Laler  v.  Jordan,  zier   v.    Kirker,  4   Tex.   252  (51  Am. 

44  id.   283;  Sylverstein  u.  Atkinson,  Dec.    724);    Powell  %i.  Messer,  18  id. 

45  id.  81;  Hickman  v.  Kuukle,  27  401;  City  of  Glasgow  Bank  v.  Mur- 
Mo.  401  (overruled  on  other  points  in  dock,  11  Up.  Can.  C.  P.  138;  Stew- 
Deardorf    v.   Thacher,    78    id.    128) ;  art  v.  Parker,  18  New  Brunswick,  223. 

375 


§3GS 


CONDUCT  OF  THE  BUSINESS, 


The  rule  imposing  this  burden  upon  the  holder  is  nearly 
universal.^     Many   of   the   earlier  American   decisions  an- 


1  Leverson  v.  Lane,  13  C.  B.  N.  S. 
278 ;  Re  Riches,  5  N.  R.  287 ;  Rolstou 
V.    Click,    1    Stew.    526;    Mauldin  v. 
Branch  B'k  at  Mobile,  2  Ala.  502,  513 ; 
Hibbler  v.  De  Forest,  6  id.  92 ;  Scott 
V.  Dansby,  12  id.  714;  Tyree  v.  Lyon, 
67   id.    1;  Guice  v.  Thornton,  76  id. 
466;  Hendrie  v.   Berkowitz,    37  Cal, 
113;  N.  Y.  Firemen's  Ins.  Co.  v.  Ben- 
nett, 5  Conn.  574,  580   (13  Am.   Dec. 
109) ;  Miller  v.  Hines,  15  Ga.  197,  200; 
Bryan  v.  Tooke,  CO  id.  437;  Lucas  v. 
Baldwin,  97  Ind.   471;  Chenowilh  u. 
Chamberlin,  6  B.  Mon.  60;  Mech.  & 
Traders'   Ins.  Co.  v.  Richardson,  33 
La.    Ann.    1308;    39  Am.    Rep.   290; 
Mutual  Nat'l  Bank  v.  Richardson,  id. 
1312;  Darling  v.  March,  22  Me.  184; 
Chazournes  v.   Edwards,  3  Pick.  5; 
Eastman  v.  Cooper,  15  Pick.  276  (25 
Am.  Dec.  600);  Sweetser  v.  French, 
2  Cush.  309  (48  Am.  Dec.  6G6j ;  Na- 
tional Security  B'k  v.  McDonald,  127 
Mass.  82;  Heffron   v.  Hanaford,    40 
Mich.  305 ;  Selden   v.  Bank  of  Com- 
merce, 3  Minn.  166;  Osborne  v.  Stone, 
SO   Minn.  25;  Robinson   v.  Aldridge, 
34  Miss.  562 ;  Deardorf  v.  Thacher,  78 
Mo.  128  (47  Am.  Rep.  95);  Davenport 
V.  Runlett,   3  N.  H.  386;  Mecutchen 
V.  Kennady,  27  N.  J.  L.  230;  Living- 
ston V.  Hastie,  2  Caines,  246 ;  Dob  v. 
Halsey,  16  Johns.  34,  39  (8  Am.  Dec. 
293);  Foot  v.   Sabin,    19   id.  154   (10 
Am.     Dec.    208);     Schermerhorn    v. 
Schermerhorn,  1  Wend.  119;  Laverty 
V.  Burr,  1   id.  529;  Williams  v.  Wal- 
bridge,  3  id.  415;  Boyd  v.  Plumb,  7 
id.  309;  Gansevoort   v.  Williams,   14 
id.  133;  Wilson  v.  Williams,   14   id. 
146    (28  Am.    Dec.    518);    Butler   v. 
Stocking,  8  N.  Y.  408 ;  Rust  v.  Han- 
sel t,  9  Jones  &  Sp.  467  (aff  d  76  N.  Y. 
614);  St.  Nicholas  B"k  v.  Savery,  13 


Jones  &  Sp.  97 ;  Weed  v.  Richardson, 
2  Dev.  &  Bat.  L.  535;  Himelright  V. 
Johnson,   40  Oh.    St.  40;    Porter  v. 
Gunnison,  2  Grant's  Cas.  (Pa.)  297; 
Bowman    v.   Cecil    Bank,   3   id.  33; 
Bank  of  Tennessee  v.  SafTarrans,  3 
Humph.    597;    Powell  v.   Messer,  18 
Tex.  401 ;  Goode  v.  McCartney,  10  id. 
193;  Young  v.    Read,    25  Tex.  Sup. 
113;    Huntington    v.   Lyman,   1    D. 
Chip.    (Vt.)  438  (12  Am.  Dec.   716); 
Waller  v.   Keyes,  6  Vt.   257;   Tomp- 
kins  V.    Woodyard,    5  W.  Va,    216; 
Royal  Canadian  Bank  v.  Wilson,  24 
Up.  Can.  C.  P.  363  (but  see  Hender- 
son V.    Carveth,   16  Up.  Can.  Q.  B. 
324).    Contra,  Flemming  v.  Piescott, 
3  Rich.  (S.  Ca.)  L.  307  (45  Am.  Dec. 
766),  holding  the  contrary  rule  to  be 
an  obstacle  to  commerce ;  and  in  First 
Nat'l  B'k  V.  Carpenter,  34  Icjwa,  433; 
s.  c.  41  id.  518,  holding  that  a  bank- 
ing firm's  guaranty  is  presumably  by 
authoi-ity.    Fuller  v.  Scott.  8  Kan.  25, 
where  an  indorsement  of  a  firm  name 
not  in  the  chain  of  title,  and  there- 
fore as  guarantors,  was  said  to  be 
presumed  to  have  been  made  in  the 
firm's  business,  but  this  was  not  nec- 
essary to  the  decision,  for  there  was 
evidence  that  it  was  in  fact  in  the 
business,  and  the  other  partner's  an- 
swer was  of  want  of  consideration 
for  the  indorsement  and  not  want  of 
authority.      In    Chazournes    v.    Ed- 
wards, 3  Pick.  5,  it  was  lield  that  ac- 
commodation  indorsers  on    a    note 
made  by  one  partner  in  the  name  of 
the  firm  for  his   separate   debt,  and 
therefore  in  fraud  of  the  copartners, 
are   presumed   to  have   intended  to 
indorse  for  the  firm   and  not  fur  the 
guilty   partner,    and    tlie   burden  of 
proof  is  on  the  creditor  to  show  that 


376 


PARTICULAR  POWERS  BEFORE  DISSOLUTION,        §  363. 

nounce  it  as  an  American  rule,  and  that  the  English  rule  is 
otherwise.  This  notion  as  to  the  English  rule  is  erroneous. 
It  was  founded  on  the  supposed  authority  of  Eidley  v.  Tay- 
lor, 13  East,  175,  and  that  case  has  consequently  been  again 
and  again  denied  in  this  country.  The  English  rule,  how- 
ever, is  now  settled  to  be  the  same  as  ours. 

The  burden  is  also  on  the  plaintiff  to  show  that  he  is  a 
bona  fide  holder  for  value. ^ 

§  3G3.  Ratification. —  Precedent  authority  or  subsequent 
ratification  need  not  be  proved  by  express  words,  or  direct 
and  positive  proof,  but  may  be  sustained  by  circumstantial 
evidence;  thus,  it  maybe  inferred  from  the  common  course 
of  business,  previous  dealings  between  the  parties,  or  their 
acts  or  omissions  after  knowledge  is  brought  home  to  them. 

The  rule  against  using  tlie  firm  name  in  accommodation  or  for 
other  unauthorized  purposes  is  not  to  be  nullified  by  presuming 
assent  on  slight  and  inconclusive  circumstances.*  But  entering  the 
transaction  on  the  books,  charging  it  to  that  partner,  or  crediting 
the  third  person  with  goods  sold  by  thu  partner,  are  sufiicient;  the 
court  in  this  case  saying  that  slight  evidence  of  assent  is  sufficient.' 

In  Howell  v.  Sewing  Machine  Co.  12  Neb.  177,  the  fact  that  a 
new  partner  said  he  had  no  loose  money  about  him  and  would  like 
to  give  new  notes  for  the  old  ones  was  held  not  to  be  assent,  the 
court  saying  that  mere  willingness  to  lend  credit  is  not  authority. 

A  written  ratification  by  one  partner  of  a  purchase  by  another 
outside  the  scope  of  the  business,  which  writing  shows  that  the 
partner  thought  the  purchase  was  to  be  paid  for  by  the  notes  of  all 
the  partners,  shows  that  he  thought  it  Avas  to  bind  all  or  none,  and, 
therefore,  does  not  render  him  individually  liable,  all  not  being 
bound.* 

they  knew  the  note  was  made  for  a  St.  Albans  v.  Gilliland,  23  Wend.  311 
separate  debt,  and  were  therefore  (35  Am.  Dec.  566);  Clark  v.  Dear- 
indorsing  a  note  mherently  bad,  or  born,  6  Duer,  309. 
he  canuot  recover  from  them.  See  2  Wilson  u.  Williams,  14  Wend. 
Williams  v.  Walbridg^,  3  Wend.  146;  28  Am.  Dec.  518;  Gray  v.  Ward, 
415.  18  111.  32;  Sutton  v.  Irwine,  12  S.  & 

1  Heath  v.  Sansom,  2  B.  &  Ad.  291 ;    R.  13. 
Hogg  V.  Skeen,  18  C.   B.  N.  S.  426;       3  Warder  u  Newdigate,  11  B.  Mon. 
Wright  V.  Brosseau,  73  111.  381 ;  Mun-    174  (52  Am.  Dec.  567). 
roe  V.  Cooper,  5  Pick.  412;  Bank  of       ••Roberts'  Appeal,  92  Pa.  St.  407. 

377 


§  3G5.  CONDUCT  OF  THE  BUSINESS. 

§  304.  by  lialbit  or  usage.— A  habit  of  the  partners 

to  exercise  such  authority  with  the  knowledge  of  all  with- 
out dissent  by  them,  or  interchanges  of  partnership  names 
with  other  firms,  so  frequent  as  to  imply  a  knowledge  of  the 
other  partners,  or  a  practice  of  paying  pi-ivate  debts  with 
joint  funds,  known  to  all,  or  a  habit  of  indorsing  for  the  same 
party  with  the  copartners'  knowledge,  will  be  sufficient  evi- 
dence of  authority.'  So  the  fact  that  the  other  partner  had 
done  the  same  on  other  occasions  with  the  knowledge  of 
this  partner  tends  to  prove  mutual  authority.^ 

§  365.  by  acliiiowledgmeiit. —  A  statement  of  the  co- 
partner to  others  that  he  had  the  note  to  pay  and  would  pay  it, 
and  bad  paid  a  similar  note  before,  and  a  promise  to  pay,  is  evi- 
dence of  ratification.*  So  of  a  statement  on  a  prior  occasion  that 
the  use  of  the  firm  name  was  all  right,  and,  after  failure  of  the  ac- 
commodated party,  stated  that  he  did  not  know  the  extent  of  his 
liability  on  account  of  such  party."  So  a  promise  to  pay,  induc- 
ing the  payee  to  forbear  suit,"  or  a  promise  to  see  it  paid  in  con- 
sideration that  the  holder  would  lend  the  note  to  the  innocent 
partner  to  try  to  collect,  thus  suspending  the  holder  s  control  of 
the  note.^ 

But  a  letter  regretting  that  the  firm  would  lose  is  not  a  ratifica- 
tion or  proof  of  authority;'  nor  is  a  promise  to  pay,  if  he  could 
get  the  books  and  cijcounts  from  the  guilty  party,  sufficient  evi- 
dence of  ratification;*  but  accepting  an  indemnity  against  the 
guaranty  was  held  to  ratify  it.' 

1  Duncan  V.  Lowndes,  3  Camp.  478;  Whitmore,   10  Heisk.    G29;  27  Am. 

Palilmauu.  Taylor,  75  111.  621);  Ditts  Rep.  733;  Workman  v.    McKinstry, 

V.  Lonsdale,  49  Ind.   521 ;  First  Nat'l  21  Up.  Can.  Q.  B.  C23. 

Bk.  V.  Bieese,  39  Iowa,  640;  Bank  of  2  Levy  v.  Pjne,  Car.  &  Marsh.  453; 

Ky.  V.  Brooking.  3  Littell,  41;  Darl-  Workman  v.  McKinstry,  21  Up.  Can. 

iiig  V.  March,  22  Me.   184 ;  Porter  v.  Q.  B.  623. 

Wliite,  39  Md.  613;  Ilayneru.  Crow,  3  Jones  v.  Booth,  10  Vt.  26S. 

79  Mo,  2U3;  Holt  v.  Simmons,  16  Mo.  4  Butler  v.  Stocking,  8  N.  Y.  408. 

App.  97;  Bank  of  Rochester  u  Bo  wen,  »  Wheeler    v.    Rice,    8   Cusii.    205; 

7  Wend.  158;  Gansevoort    v.   Will-  Rice  v.  Barry,  2  Cranch,  C.  C.  447. 

iams,    14   Wend.    133;    Steuben   Co.  epiagg  v.  Upham,  10  Pick.  147. 

Bank  v.  Alburger  (N.  Y.  18S0),  4  N.  E.  ^  Bei  ryliill  v.  McKee,  1  Humph.  31. 

Rep.  341;  Bank  of  Tennessee  v.  Saf-  8  Burleigh  v.   Parton,  21   Tex.  585. 

farrans,    3    Humph.  597;    Scott    v.  9  Clark  v.  Hyman,  55  Iowa,  14. 
Bandy,   2     Head,     197;    Pooley    v. 

378 


PARTICULAR  POWERS  BEFORE  DISSOLUTION.        §  3GG. 

A  guaranty  signed  in  tlie  firm  name  hy  one  partner  is  not  void 
as  to  the  others,  under  the  statute  of  frauds,  if  authority  is  shown; ' 
but  a  subsequent  verbal  promise  by  the  innocent  partner  was  held 
void  under  the  statute  of  frauds.' 

A  new  firm  with  an  incoming  partner  is  not  liable  npon  an  oral 
promise  to  pay  the  debts  of  the  old  firm.^  The  question  is,  how- 
ever, whether  the  old  debts  have  been  assumed  by  the  new  firm  on 
a  new  consideration,  so  as  to  become  their  debts,  and  such  assump- 
tion may  be  oral,  and  the  release  of  an  outgoing  partner  may  be 
tlie  consideration.* 

In  Stearns  v.  Burnham,  4  Me.  81,  one  partner  made  a  note  in 
the  firm  name  for  his  separate  debt,  after  dissolution  of  the  firm, 
known  to  the  creditor.  A  suit  on  the  note  against  both  was  com- 
promised, the  innocent  partner  giving  his  note  for  half  the  debt 
and  subsequently  paying  part  on  the  new  note;  he  was  held  not 
liable  for  the  balance  of  the  new  note. 

§  366.  by  acting  under  the  unauthorized  act. —  Act- 
ing under  or  taking  any  advantage  of  the  fraudulent  signa- 
ture is  a  ratification. 

Thus,  where  a  firm  note  was  given  by  one  partner  for  the  unau- 
thorized purchase  of  land  out  of  the  scope  of  the  business,  the 
title  of  which  is  taken  in  the  name  of  both,  the  other  partner 
joining  in  a  contract  to  convey  it  to  others,  though  stating  that  he 

1  Duncan  v.  Lowndes,  3  Camp.  478;  Cranch,  C.  C.  447.  And  if  the  con- 
and  see^§  3(53,  3G4;  Moranu.  Prather,  tract  of  purchase  of  goods  by  a  firm 
23  Wall.  492;  and  see  Princeton  &  be  tliat  the  price  may  be  credited 
Kingston  Tp.  Co.  v.  Guhck,  IG  N.  J.  upon  the  debt  of  one  partner,  it  is 
L.  161 ;  Cockroft  v.  Clafliu.  64  Barb,  valid,  tliough  oral,  of  course,  as  au 
464  (nffd.  in  53  N.  Y.  618);  Butler  u.  original  contract  designating  the 
Stocking.  8  N.  Y.  408.  mode   of   payment,    Rhodes   v.    Mc- 

2 In   Taylor   v.  Hillyer,   3  Blackf.    Kean,   55  Iowa,  517.     If    an  act  in 
433  (26  Am.  Dec.  430),  and  Wagnon   the  name  of  the  firm  by  one  partner 
V.    Clay,    1   A.    K.    Mar.    (Ky.)    257.    outside  the  scope  of  the  business  is 
Contra,  McGill   v.    Dowdle,  33  Ark.    adopted  by  tlie  firm,  or  they  receive 
311;  Marsli    V.    Gold,    2    Pick.    285;    the  benefit  of  it,  their  oral  raiifica- 
Jones  V.  Booth,  10  Vt.  268;  and  see    tion  or  promise  is  good,  Succession 
Greenleaf  v.  Burbank,  13  N.  H.  454.    of  Arick,  22  La.  Ann.  501. 
An  oral  promise  by  one  partner  to        3  Paradise  v.   Gerson,  32  La.  Ann. 
pay  a  debt  of  his  copartner,  in  con-    532.     Contra,   Wilson  v.   Dosier,  53 
sideration  of  the  creditor's  forbear-   Ga.  C02. 
ance  to  levy  upon  the   firm's  assets,       ^See  §  505. 
was  held  valid   in   Rice  v.  Barry,  2 

379 


§  3GS.  CONDUCT  OF  THE  BUSINESS, 

had  no  interest  and  only  did  so  for  his  partner's  benefit,  ratifies  the 
purchase  and  notes,  for  he  has  alienated  the  property.' 

So  where  the  innocent  partner  borrows  the  note  from  the  holder 
In  order  to  pursue  the  guilty  partner,  who  had  moved  to  another 
state,  and  collect  it,  and  guarantying  its  payment  in  consideration 
thereof.* 

So  where  one  partner  bought  a  store  and  stock  in  another  town, 
though  taking  the  title  in  his  own  name,  the  other  partners  pro- 
claiming by  their  acts  that  they  had  opened  a  store  in  that  place 
is  evidence  of  ratification  or  of  prior  authority.' 

§367.  By  silence. —  Mere  silence  or  failure  to  make  prompt 
denial  of  the  copartner  when  informed  of  the  existence  of  the  un- 
authorized note,  without  any  element  of  estoppel  in  it,  is  not  of 
itself  evidence  of  ratification.^ 

Yet  failure  to  repudiate  or  deny  in  a  reasonable  time  has  been 
held  evidence  of  ratification.* 

§  368.  Prior  authority  deviated  from. —  Where  the  plaint- 
iff relies  upon  an  express  authority  given  by  the  firm  to  one  part- 
ner, the  contract  sued  upon  must  be  within  the  terms  of  the  powers 
granted  to  the  same  extent  that  obtains  in  other  cases  of  agency. 
Hence,  express  or  implied  authority  to  make  accommodation  in- 
dorsements is  not  authority  to  sign  as  co-maker  or  surety.*  Nor 
does  an  agreement  of  a  firm  of  agents  to  sell,  to  "guaranty  all 
notes  good  when  taken,"  give  a  partner  authority  to  sign  the  firm's 
name  as  co-makers  with  the  principal  debtor.'  Nor  does  authority 
to  sign  a  note  authorize  the  individual  names  of  the  partners  to  be 

1  Dudley  u  Littlefield,  21  Me.  418;  SReubin   v.    Cohen,  48     Cal.    545; 

Porleru  Curry,  50  III.  319.  Roberts    v.    Barrow,     53     Ga.    314; 

^Flagg   V.    Upham,    1(»   Pick.  147;  Svveetser  v.  French,  2  Cush.  309,  315 
for  other  assumptions  of  the  debt  (48   Am.    Dec.    6GG);    Foster  v.    An- 
sae Cockroft  V.  Clallin,  64  Barb.  464  drews,  2  Pa.  160;  Woodward  t;.  Win- 
(aff'd,  vvitliout  opinion,  in  53  N.   Y.  ship,  12  Pick.  430. 
618);  Be.  Dunkle,  7  Bankr.  Reg.  107.  6  Early  v.  Reed,  6  Hill,  12;  McGuire 

3  Davis  V.  Cook,  14  Nev.  265.  V.  Blanton,  5  Humijli.  361   (llie   stat- 

^Tyree  v.  Lyon,  67  Ala.  1 ;  Hendrie  utc  of  limitations  being  different  in 
V.  Berkovvitz,  37  Cal.  113;  Marsh  v.  tliis  state  as  to  indorsers  and  co- 
Thompson  Nat'l  Bk.  2   111.  App.  217;  makers). 

Ilayes    v.    Baxter,    65     Barb.    181.  7  Bray  ley  r.  Hedges,  53  Iowa,  623, 

Contra,   if  the  firm   was  benefited,  625. 
silence  is  a  ratification,  Stewart  v. 
Caldwell,  9  La.  Ann.  419. 

380 


PARTICULAR  POWERS  BEFORE  DISSOLUTION.        g  370. 

SO  placed  as  to  render  their  apparent  legal  obligations  infer  se  hos- 
tile, such  as  signing  the  name  of  one  as  maker  and  one  as  surety. 

So,  also,  written  authority  given  to  one  partner  to  sign  the  name 
of  the  firm  or  the  separate  name  of  one  partner  is  not  authority 
to  pay  a  bond  given  in  his  separate  name  for  a  joint  debt.'^ 

So  authority  to  indorse  to  the  extent  of  $150  is  not  authority  to 
indorse  a  note  for  $600  as  security  for  $150.^ 

A  power  to  receive  a  deposit  of  money  and  paying  interest  on  it 
does  not  include  a  power  to  bind  the  firm  by  receiving  a  deposit  of 
bonds,  because  money,  unlike  bonds,  would  be  a  benefit  to  the  firm.'' 

So  a  note  made  by  all  the  partners  for  one  purpose  is  not  a  debt 
of  the  firm  when  applied  to  another  purpose.^  And  where  both  the 
partners  joined  in  making  a  note  payable  to  a  bank,  to  be  dis- 
counted, in  order  to  pay  partnership  debts,  and  one  of  the  partners 
delivered  it  to  his  separate  creditor  without  authority,  "and  the  bank 
refused  to  discount  the  note  or  allow  the  creditor  to  sue  in  its 
name,  the  creditor  cannot  recover  from  the  partners.  Both  part- 
ners must  assent  to  the  issuing  as  Avell  as  signing,  to  constitute  it  a 
note.* 

§  369.  declarations. —  Thedeclarationsof  the  guilty  part- 
ner at  the  time  of  giving  the  firm's  note  for  the  debt  of  another 
firm,  that  the  former  had  asssumed  the  debts  of  the  latter,  or  had 
received  a  consideration,  are  not  admisrible  against  his  copartners.'' 

Nor  is  a  prior  agreement  to  guaranty,  signed  in  the  handwriting 
of  the  partner  who  subsequently  gave  the  guaranty.* 

Conversations  and  transactions  between  the  partners  at  dissolu- 
tion and  attempted  settlement  in  the  absence  of  the  payee,  show- 
ing that  the  iunocent  partner  did  not  know  such  paper  was  out- 
standing, are  competent  in  his  own  favor  to  rebut  any  inference  of 
assent  drawn  from  such  occurrences.' 

BORROWING  POWER. 

§  370.  In  trading  firms. —  This  is  the  most  dangerous  of 
powers  and  yet  one  of  the  very  necessary  ones  in  a  com- 

1  Stroll  V.  Hiuchman,  37  Mich.  490.    574.      Contra,    Chenango   Bank     v. 

2  United  States  v.  Astley,  3  Wash.    Hyde,  4  Cow.  567. 

C.  C.  508.  '  Kaiser  v.  Fend  rick,  98  Pa.  St.  528 ; 

3  Mercein  v.  Andrus,  10  Wend.  461.  Heffron  v.  Hanaford,  40  Mich.  305. 
■*  Hatheway's  Appeal,  53  Mich.  112.       8  Osborne  v.  Stone,  30  Minn.  25. 
5Guice  V.  Thornton,  76  Ala.  466.  9  Gale  v.  Miller,  54  N.  Y.  536  (affg. 
6  Adams  Bank  v.   Jones,  16  Pick.  1  Lans.  451;  44  Barb.  420). 

381 


0. 


CONDUCT  OF  THE  BUSINESS. 


raercial  partnership.  It  is  very  closely  allied  to  the  power 
to  make  notes  and  bills;  seems  to  be  always  accompanied 
by  the  latter  power,^  and  generally  by  the  power  to  pledge 
or  mortgage  to  secure  the  loan.^  It  is,  of  course,  a  much 
broader  power  than  that  to  obtain  goods  or  supplies  on 
credit,  and  hence  is  broader  than  a  power  to  incur  debts, 
and  is  not,  therefore,  included  in  the  latter.  In  a  trading 
partnership,  however,  the  power  is  deemed  always  to  exist 
by  implication,  and  to  follow  as  a  legal  consequence  when 
that  relation  is  established,  unless  the  lender  has  notice  of 
the  purpose  for  which  it  is  wanted  and  that  purpose  is  not 
within  the  scope.' 

And  it  seems  that  the  power  to  borrow  extends  to  assisting  the 
running  of  other  enterprises  in  which  the  firm  has  taken  an  inter- 
est, as  for  a  mill  in  which  it  owns  stock.* 

We  have  elsewhere  seen "  that  money  borrowed  on  the  individual 
credit  of  one  partner  does  not  become  a  debt  of  the  firm  by  being 
applied  to  its  use. 


1  See  supra,  Bills  and  Notes. 

2  See  §  403. 

!<Rothwell  V.  Humphreys,!   Esp. 


lins,  115  Mass.  388;  Faler  v.  Joi'dan, 
44  Miss.  283;  Bascora  v.  Young,  7 
Mo.    1 ;  Roney   v.  Buckland,  4   Nev. 


406;  Thicknesse   y.  Bromilow,  2  Cr.   45;  Church  v.  Sparrow,  5  Wend.  223; 


&  J.  4:^5 ;  Lane  v.  Williams,  2  Vern. 
277.  292;  Denton  v.  Rodie,  3  Camp. 
493;  Ex  parte  Bonbonus,  8  Ves.  510; 


VVhitaker  v.  Brown,  16  id.  505;  On- 
ondaga Co.  Bank  v.  DePuy,  17  id. 
47;    Miller  v.    Manice,    6  Hdl,    119; 


Lloyd   V.   Fresh  field,  2  C.  &  P.  383;    Seybold  v.  Green  wald,  1  Disney,  425; 


Brown  v.  Kidger,  3  H.  &  N.  853; 
Winship  v.  Bank  of  U.  S.  5  Pet.  529, 
563;  5  Mason,  176;  Saltmarsh  v. 
Bower,  22  Ala.  221 ;  Howze  v.  Pat- 
terson, 53  Ala.  205  (25  Am.  Rep.  607); 
Wagner  v.  Simmons,  61  id.  143; 
Decker  u  Howell,  42  Cal.  636;  Pahl- 
man  v.  Taylor,  75  111.  629;  Walsh  v. 
Lennon,  98  111.  27  (38  Am.  Rep.  75) ; 
Gregg  V.  Fisher,  3  111.  App.  201; 
Hunt  V.  Hall,  8  lud.  215;  Leffler  v. 
Rice,  44  id.  103;  Sherwood  v.  Snow, 
46  Iowa.  481  (26  Am,  Rep.  155); 
Deitz  V.  Regnier,  27  Kan.  94;  Lindh 
V.  Crowley,  29  id.  750;  Emerson  v, 
Harmon,  14  Me.  271;  Etheridge  v. 
Binney,  9  Pick.   272;  Smith  v.  Col- 

882 


Gano  V.  Samuel,  14  Oh.  593;  Klein- 
haus  V.  Generous,  25  Oh.  St.  667; 
Benninger  v.  Hess,  41  id.  64;  Hoskis- 
son  V.  Eliot,  62  Pa.  St.  893 ;  Steel  v. 
Jennings,  Cheves  (S.  Ca.),  183;  Ford 
V.  McBryde,  45  Tex.  498 ;  Michael  v. 
Workman,  5  W.  Va.  391.  See,  also, 
the  cases  cited  under  Power  to  Give 
Bills  and  Notes,  §  341. 

4  Morse  v.  Hagenah  (Wis.),  33  N. 
W.  Rep.  634;  Andrews  v.  Congar 
(Supreme  Ct.  U.  S.  1881),  20  Am. 
Law  Reg.  (N.  S.)  328;  Lawyers' 
Coop.  Book,  26,  p.  90,  noticed  fully 
under  §  349. 

5g446. 


PARTICULAR  POWERS  BEFORE  DISSOLUTION.        §  371. 

And  that  where  one  partner  borrows  money  not  expressly  upon 
his  individnal  credit,  and  it  is  shown  to  have  been  borrowed  for 
and  used  for  the  firm,  the  firm  will  be  liable;'  and  if  the  name  of 
one  partner  is  the  name  of  the  firm,  what  circumstances  make  the 
loan  a  firm  debt.* 

And  that  a  loan  on  the  credit  of  the  firm  is  a  partnership 
debt,  although  the  money  is  misapplied  by  the  borrowing  partner 
to  his  own  purposes,  if  the  lender  did  not  participate  in  the  mis- 
use." 

§  371.  Non-trading  firm. —  The  borrowing  power,  how- 
ever, is  confineci  strictly  to  trading  partnerships,  and  does 
not  exist  in  non-trading  firms  unless  specially  granted, 
either  by  the  articles  oc  for  the  occasion,  or  by  specific  au- 
thority or  by  subsequent  ratification;*  and  the  same  rule 
applies  where  the  articles  of  partnership  have  forbidden 
borrowing  and  the  lender  has  notice  of  the  restriction.* 

But  there  is  no  implied  power  to  borrow  in  order  to  found  the 
partnership,  and  if  an  express  power  is  granted  the  authority  does 
not  extend  beyond  the  terms  of  the  power.  Thus,  where  A.  and 
B.  agreed  to  buy  a  farm  of  C.  in  partnership,  to  be  paid  for  in  bills 
at  three  and  six  months,  and  B.,  by  agreement  with  C,  drew  the 
bills  at  six  and  twelve  months  without  A.'s  knowledge,  A.  is  not 
liable  upon  the  bills.* 

Nor  is  there  any  agency  in  partners  for  each  other  to  borrow  in 
order  to  increase  the  fixed  capital  of  the  firm,  and  a  lender  know- 
ing this  is  the  purpose  of  the  loan  cannot  charge  the  other  part- 
ners with  the  loan.' 

ig447.  C.  P.  391;  Wilson  v.  Brown,  6  Ont. 

2  §443.  App.  411.     See  Freeman  v.  Carpen- 

3  §348.  ter,  17  Wis.  126. 

^Forster  v.  Mackreth,  L.  R.  3  Ex.  5  ijg  Worcester  Com  Exchange  Co. 

168;   Plumer  v.   Gregory,  L.   R.    18  3  DeG.  M.  &  G.  180.     And  see  §  322. 

Eq.  621;  Pease  V.  Cole,  53  Conn.  53;  Contra,  if  for  the  purchase  of  sup- 

Ulery   v.   Ginrich,  57  111.  531;  Bays  piles  essential  to  prosecution  of  the 

V.   Conner,  105   Ind.   415;    Breckin-  enterprise.  Gavin  u  Walker,  14  Lea. 

ridge  v.  Shrieve,  4  Dana,  375 ;  Davis  643. 

V.  Richardson,  45  Miss.  499 ;  Prince  6  Greenslade  v.  Dower,  7  B.  &  C. 

V.    Crawford,    50  id.    344 ;    Hunt  v.  635.     See,  also,  §  446. 

Chapin,  6  Lans.   139;  Crosthvvait  v.  ^  Fisher    v.    Tayler,    2    Hare,   218. 

Ross,    1    Humph.    23  (34  Am.  Dec.  The  apparent  inconsistency  in  the 

613;  McCord  v.   Field,  27   Up.  Can.  phrase  borrow   to  increase   capital, 

383 


§  STJJ.  CONDUCT  OF  THE  BUSINESS. 

§372.  Form  of  borrowing. —  A  partner's  right  to  raise 
money  for  the  Arm  extends  to  indorsing  notes  as  well  as 
making  them,'  or  to  borrow  indorsements,^  or  to  borrow  a 
note  or  signature  in  accommodation,^  or  exchange  notes  or 
acceptances,*  or  borrow  securities,  as  United  States  bonds.' 

And  in  a  partnership  to  buy  and  sell  oats,  one  partner  borrowed 
oats,  the  loan  to  be  repaid  in  oats.  This  was  held  valid.*  And  a 
member  of  a  manufacturing  firm  having  unfinished  articles  on 
hand  may  deliver  them  to  another  to  finish  and  sell  to  reimburse 
himself  his  advances.'' 

A  borrowing  at  a  usurious  rate,  being  illegal,  was  held  not  bind- 
ing on  the  non-assenting  partners,  except  to  the  extent  of  the 
principal  and  legal  interest.* 

And  it  has  been  said  that  a  partner  can  contract  to  pay  a  share 
of  profits  in  lieu  of  interest;®  but  a  managing  partner's  contract 
to  pay  twenty-five  per  cent,  of  the  net  profits  in  lieu  of  interest  on 
a  loan  of  $2,000,  where  the  aggregate  capital  is  $16,000,  and  the 
interest  would  amount  to  more  than  the  lender's  proportion  of 
profits,  if  a  partner,  would  have  amounted  to,  was  held  not  within 
his  authority.'" 

BUYING." 

§373.  In  trading  firms. —  Each  member  of  a  trading 
partnership,  part  of  whose  ordinary  business  is  the  purchas- 
ing of  goods,  has  implied  authority  to  purchase  in  the  name 

because  the  increase  is  balanced  by  Rep.  383.     See  Hogan  v.  Reynolds, 

the  debt,  and  is,  therefore,  delusive  8  Ala.  59. 

unless  the  borrowing  is  on  individual  ^Ganou  Samuel,  14  Oh.  593. 

credit,    is  noticed   by  Mr.    Lindley,  ^  Roney  t\  Buckland,  4  Nev.  45. 

Partnership,  p.  274.  ^  Adee  v.  Demorest,  54  Barb.  433. 

1  Miller  v.  Consolidation   Bank,  48  ^Carnesu  White,  15  Gray,  378. 

Pa.  St.   514;  Moorehead  v.   Gilmore,  « Dillon    v.    McRae,    40    Ga.    107. 

77  Pa.   St.    118;   18   Am.    Rep.    435;  See  Chandler  v.  Sherman.  16  Fla.  99. 

Manning  v.  Hays,  6  Md.  5 ;  Emerson  ^  Ford  v.  McBryde,  45  Tex.  498. 

V.  Harmon,  14  Me.  271.  lo  Chandler  v.  Sherman,  16  Fla.  99. 

2Deitz    V.   Regnier,    27    Kan.    94;  n  As  to  when  the  power  to  purchase 

Roney    v.     Buckland,    4    Nev.    45;  begins  and  as  to  the  right  to  buy 

Hutchins  v.  Hudson,  8  Humph.  426.  before   the   partnership   is    formed, 

3  Johnson    v.  Peck,    3    Stark.    66;  but  in  contemplation  of  it,  has  been 

Faler     v.     Jordan,     44    Miss.     283;  treated  under  the  head  of  Inchoate 

Sorg  V.  Thornton,  1  Cin.  Super.  Ct.  Partnerships,  g  80. 

384 


PARTICULAR  POWERS  BEFORE  DISSOLUTION.        §  374. 

of  the  firm  whatever  is  necessary  to  carry  on  its  business  in 
the  usual  way,  and  may  pledge  its  credit  for  payment.^ 

If  the  purchase  is  outside  the  real  and  apparent  scope  of 
the  partnership  business,  the  firm  is  not  bound  by  it,  unless 
all  the  partners  assented,  for  all  firms  are  to  some  extent 
limited,  and  outside  the  scope  they  stand  on  the  same  plane 
as  non-trading  firms. ^ 

§  374.  In  non-trading  flrnis. —  It  is  difficult  to  conceive  of 
a  partnership  wiiich  does  not  require  some  purchases  to  be 
made  in  the  usual  course  of  its  business,  and  in  this  power 
there  is  less  difference  between  trading  and  non-trading 
firms  than  in  other  powers;  and  in  a  non-commercial  part- 
nership, the  power  to  purchase  on  credit  such  articles  as  are 
necessary  to  a  prosecution  of  the  business  or  enterprise  in  the 
ordinary  way,  or  to  carry  into  effect  the  purposes  for  which 
it  was  created,  as  distinguished  from  purchases  to  enlarge 
the  business  or  for  mere  convenience,  seems  clearly  to  exist. 
Not  that  a  mere  bo7iafide  sale  to  one  partner  binds  the  firm 
to  pay  the  seller,  but  that  the  existence  of  authority  which 
the  seller  must  prove  may  be  shown  by  the  nature  of  the 
business  itself,  and  if  not,  then  the  further  fact  of  necessity 
for  the  ordinary  purposes  of  the  business  will  establish  it 
without  proof  of  express  authority. 

In  Gardiner  v.  Childs,'  printers  and  publishers  in  partnership  iin 
the  profits  of  a  publication  to  be  made  are  all  liable  for  a  purchase- 
of  paper  by  the  publishers  for  the  purpose  of  the  publication.. 
Contra  if  each  is  to  purchase  his  own  supplies  and  contribute  them^ 
as  part  of  his  share  in  the  enterprise.* 

iHyat  V.  Hare,  Comb.  383;  Bond  257;  Maltby  t?.  Northwestern  Va.  R.. 
V.  Gibson,  1  Camp.  185,  where  R.  Co.  16  Md.  422;  Goode  v.  Line- 
one  of  a  firm  of  harness  makers  cum,  1  How.  (Miss.)  281 ;  Livingston 
bought  on  the  firm's  credit  bits  v.  Roosevelt,  4  Johns.  251 ;  4  Am. 
f  oi  making  bridles,  but  appropriated  Dec.  273 ;  BViggs  v.  Hubert,  14  S. 
t!iem  to  his  own  use ;  Ala.  Fertilizer  Ca.  620 ;  Venable  v.  Levick,  2  Head, 
Co.  V.  Reynolds,  79  Ala.  497;  Dick-  351;  Bankhead  v.  Alloway,  6  Cold. 
son  V.  Alexander,  7  Ired.  L.  4 ;  Ven-  56 ;  Eraser  v.  McLeod,  8  Grant's  Ch. 
able  V.  Levick,  2  Head,  351.  (Up.  Can.)  268. 

2 Irwin  V.  Williar,  110  U.  S.  499,        38  C.  &  P.  345. 
505;  U.  S.  Bank  v.  Binney.  5  Mason,       *  Wilson  r.  Whitehead,  10  M.  &W. 

176;  Wagnon  v.  Clay,  1   A.  K.  Mar.  50;). 
Vol.  1  —  25                            3S.> 


§  ;{74.  CONDUCT  OF  THE  BUSINESS. 

In  McCrary  v.  Slaughter,  58  Ala.  230,  two  persons,  each  own- 
ing an  undivided  half  of  a  plantation,  formed  a  partnership,  one  to 
furnish  the  mules  and  half  the  laborers  and  the  other  his  services 
and  half  the  laborers,  neither  to  have  power  to  bind  the  other 
by  any  contract.  One  of  the  partners  made  a  purchase  of  mules 
on  the  credit  of  the  firm,  and  this  was  held  not  to  bind  his  copart- 
ner. The  court  said  that  a  purchase  of  mules  was  not  necessary  or 
appropriate  to  the  business;  that  no  contract  by  one,  except  for 
something  necessary  to  the  successful  conduct  of  the  business, 
would  be  supported;  that  if  this  contract  was  within  the  scope,  a 
contract  for  the  purchase  or  rent  of  land  or  purchase  of  a  gin 
would  be,  and  that  it  was  better  to  let  the  power  to  contract  stand 
on  express  authority  than  to  indulge  implications  to  support  it. 

In  Burnley  v.  Rice,  18  Tex.  481,  491,  in  a  partnership  for  the  cul- 
tivation of  cotton,  a  debt  incurred  by  one  with  a  view  to  culti- 
vating sugar  was  within  the  apparent  scope  of  the  business  as 
planters,  but  in  this  case  there  was  abundant  evidence  of  ratifica- 
tion. 

In  Lynch  v.  Thompson,  61  Miss.  354,  a  partnership  was  formed 
for  a  single  enterprise,  the  raising  and  selling  the  material  of  a 
sunken  steamer,  and  the  power  to  buy  on  credit  was  exercised  by 
one  partner  and  was  sustained  by  the  court.  It  was  ruled  that,  to 
have  an  implied  power  to  purchase,  the  partners  need  not  be  gen- 
eral traders;  that  the  scope  was  to  be  judged  by  the  nature  of  the 
business;  and  as  the  purchase  on  credit  of  appliances,  or  of  whatever 
is  essential  to  promote  the  enterprise,  may  be  required,  the  neces- 
sary authority  to  make  them  is  implied  and  need  not  be  inquired 
into  bj'  a  person  dealing  with  one  partner. 

One  of  a  mining  firm  can  bind  it  for  purchases  essential  to  carr^' 
on  and  accomplish  the  purposes  of  the  business;  •  one  of  a  firm  of 
stone  masons  with  contracts  for  building  may  order  stone  from  the 
owner  of  a  quarry;*  one  of  a  firm  of  contractors  to  build  or  grade 
a  railroad  route  ma}'  purchase  supplies;^  one  of  a  firm  running  a 
saw-mill  may  purchase  necessary  groceries  and  supplies  for  the 
hands.*  In  a  partnership  to  buy  a  single  drove  of  cattle  to  be 
shipped  to  the  southern  market,  the  power  of  purchasing  is  ex- 

'■  Jones  V.  Clark,  42  Cal.  180 ;  Man-       2  Kenney  v.  Altvater,  77  Pa.  St.  34 
ville  V.  Parks,  7  Colorado,  128.    And       «  Gavin  v.  Walker,  14  Lea,  643. 
see  Higgins  v.  Armstrong,  10  Pac.       <  Johnston  u.  Button,  27  Ala.  245, 
Rep.  332. 

886 


■    PARTICULAR  POWERS  BEFORE  DISSOLUTION.        §  874. 

hausted  when  the  drove  is  bought,  and  a  partner  who,  on  the  way 
to  the  market,  makes  additional  purchases  in  the  name  of  the  firm, 
does  not  bind  his  copartner  thereby.* 

In  Tate  v.  Clements,  16  Fla.  76  (26  Am.  Rep.  709),  the  man- 
aging partner  in  a  saw-mill  bought  a  lot  of  chopped  corn,  repre- 
senting that  it  was  required  in  the  business;  and  this,  with  proof 
that  it  was  actually  used  in  the  business,  was  held  sufficient  to 
establish  a  presumption  that  the  purchase  was  in  the  scope  of  the 
business,  and  the  jury  might  decide  whether  it  was  legitimately 
connected  therewith  or  not.  The  court  further  stated  that  it  would 
be  equally  difficult  to  say  if  the  purchase  of  horses  would  be  neces- 
sary to  haul  logs,  and  so  of  feed  for  the  horses.  Yet  there  was  no 
direct  evidence  in  the  case  that  the  firm  used  cattle. 

In  Leffler  v.  Rice,  44  Ind.  103,  and  Folk  v.  Wilson,  21  Md.  538, 
a  purchase  of  middlings  and  grain  for  the  mill  by  one  partner  was 
held  to  be  reasonably  and  properly  connected  with  the  business. 

In  Judge  V.  Braswell,  13  Bush,  67  (26  Am.  Rep.  185),  in  a  part- 
nership to  prospect  for  and  mine  ore  on  the  partnership's  lands,  and 
on  other  lands  which  it  might  secure,  and  to  sell  these  privileges, 
the  articles  forbidding  any  number  less  than  all  to  buy  lands,  one 
partner  purchased  additional  lands  in  the  name  of  the  firm,  and 
drew  on  the  others  for  the  purchase  money,  and  the  vendors 
brought  an  action  on  their  refusal  to  pay  the  drafts.  It  Avas  held 
that,  being  a  non-commercial  partnership,  the  plaintiff  must  show 
the  authority  of  a  single  partner  to  make  the  contract  sued  on; 
and  as  no  proof  of  authority  by  usage  of  similar  partnerships 
is  shown,  and  as  no  rule  of  law  gives  such  authority,  all  the 
power  a  partner  has  to  make  such  contract  is  derived  from  the  ar- 
ticles, and  the  articles  putting  such  purchases  within  the  scope  of 
the  business,  at  the  same  tiuie  withhold  such  power  from  a  single 
partner,  and  the  plaintiff  cannot  recover. 

In  a  partnership  to  buy  and  sell  lands  any  partner  has  the  right- 
to  buy  land  for  the  firm,  and  bind  the  members  for  payment.* 

In  Davis  v.  Cook,  14  Nev.  265,  it  was  held  that  authority  given 
to  a  partner  to  open  a  store  in  another  place  involves  authority  to 
purchase  a  store  and  stock  of  goods  there  on  credit.  The  court, 
putting  certain  supposititious  cases,  which  are  not  of  trading  part- 
nerships, though  this  difference  is  not  noted,  says  that  a  partner- 

iBentley  v.  White,  3  B.  Mon.  263  2  Sage  v.  Sherman,  2  N.  Y.  417,  432, 
(38  Am.  Dec.  185). 

887 


§  375.  CONDUCT  OF  THE  BUSINESS. 

ship  formed  in  one  place  to  keep  a  hotel  in  another  impliedly  gives 
power  to  the  managing  partner  to  buy  a  hotel  on  credit  there. 
And  that  a  managing  partner  in  a  stage  line  has  implied  power  to 
make  a  purchase  of  barns.  So  in  Stillman  v.  Harvey,  47  Conn.  26, 
a  partnership  being  formed  to  carry  on  a  brewing  business,  but 
having  no  brewery,  a  purchase  by  one  partner  of  the  unexpired 
lease  of  a  brewery,  in  the  firm  name,  was  held  to  be  within  the 
scope  of  his  powers.  In  this  case,  however,  the  firm  took  possession 
and  prosecuted  their  business  in  it,  which  of  course  cured  any  de- 
fect of  power. 

A  few  cases  have  gone  further,  and  permitted  the  purchase  on 
credit  of  appliances  convenient  rather  than  strictly  necessary,  to 
effect  the  purposes  of  the  partnership;  as  stoves  in  a  livery-stable,' 
law  books  for  a  law  firm,*  medicines  by  a  medical  firm.'  And  in  a 
partnership  to  manufacture  iron,  the  acting  and  only  resident 
partners  were  held  authorized  to  buy  timber  land,  to  get  fuel  for 
the  business.* 

If  one  partner  is  deprived  of  all  authority  to  buy  supplies,  and 
the  other  is  to  furnish  all  tools,  but  refuses  to  do  so,  this  was  held 
to  constitute  an  implied  assent  to  the  former's  purchase  of  them, 
and  he  will  be  reimbursed  out  of  the  crops." 

§  375.  Delivery  to  one  partner. —  Delivery  to  one  partner 
of  goods  ordered  by  the  partnership  is  delivery  to  the  firm;  * 
and  so  of  delivery  of  a  deed ;  ^  hence  delivery  to  one  partner 
cannot  be  in  escrow.^ 

In  Byiugton  v.  Gaff,  44  111.  510,  a  firm  contracted  to  buy  a  steam- 
boat, the  defendant  guarantying  payment,  and  the  vendor  made 
out  a  bill  of  sale  to  one  partner  alone  and  delivered  the  boat  to  him. 
The  defendant  claimed  this  was  a  new  sale,  but  being  apparently 
intended  in  fulfillment  of  the  contract,  the  guarantor  was  held 
liable;  both  partners  had  assented  to  the  delivery,  however. 

In  Cameron  v.  Blackman,  39  Mich.  108,  the  managing  partner 

1  Hickman  v.  Kunkle,  27  Mo.  401,  SNichol  t>.  Stewart,  36  Ark.  612; 
404.  but  see  Morgan  v.  Pierce,  59  Miss. 

2  Miller  v.  Hines,  15  Ga.  197,  201.       210. 

sCrosthwait  v.  Ross,  1  Humph.  23  SKenney  r.  Altvater,  77  Pa.  St,  84; 
(84  Am.  Dec.  C13).  Crosswell  v.  Lehman,  54  Ala.  563. 

♦Brooke  r.  Washington,   8  Gratt.       ■<  Henry  v.  Anderson,  77  Ind.  861. 
248.  8  Moss  V.  Riddle,  5  Cranch,  351, 

388 


PARTICULAR  POWERS  BEFORE  DISSOLUTION.        g  •)-«. 

authorized  the  vendor  to  deliver  goods  to  one  F.  C,  a  young  relative 
of  the  partners  and  once  in  their  employ,  and  the  firm  was  held 
liable,  on  the  doctrine  that  it  is  usual  and  proper  for  merchants  in 
different  businesses  to  furnish  each  other's  customers  with  articles, 
which  are  charged  to  the  house  and  not  to  the  buyer,  and  the  court 
will  take  judicial  notice  of  such  custom.  No  one  thinks  of  ask- 
ing why  such  credits  are  sought,  or  whether  the  partnership  articles 
contemplate  it,  and  whether  the  goods  are  desired  for  clerks  or  cus- 
tomers or  strangers  does  not  concern  the  seller;  he  has  a  right  to 
presume  such  dealings  are  within  the  power  of  all  business  houses.' 

§  376.  varying  the  contract. — The  power  of  one  part- 
ner to  vary  a  contract  of  purchase  made  by  the  firm  is  treated  under 
the  power  of  control  over  its  property."  If  goods  are  sold  and  de- 
livered to  a  firm  on  credit,  one  partner  has  power  to  return 
them  on  account  of  the  inability  of  the  firm  to  pay.'  So  if  the 
firm  having  agreed  to  sell  goods  deliver  inferior  articles,  a  partner 
may  agree  to  take  them  back  and  return  the  consideration.*  So 
where  a  partner  authorized  to  sell  sold  with  warranty  of  soundness, 
and  proving  unsound,  he  can  take  them  back  and  bind  the  firm  to 
return  the  price.* 

Other  branches  of  the  law  of  partnership  as  applied  to  purchases 
have  been  considered  under  other  heads.  Thus,  where  purchases 
on  credit  are  forbidden  and  this  is  known  to  the  seller.*  When 
purchases  by  a  single  partner  inure  to  the  benefit  of  the  firm,  see 
under  Good  Faith.'  When  an  unknown  partner  is  bound,  see 
Dormant  Partner; '  and  when  the  partnership  name  has  not  been 
used.'  As  to  purchases  by  a  partner  to  contribute  as  his  share  of 
the  capital,  or  by  one  who  subsequently  takes  in  a  partner.'"  As 
to  what  purchases  are  in  the  scope  of  the  business  generally." 
When  a  partner  purchases  for  his  own  use  in  the  name  of  the 
firm.'"    When  a  partner  purchases  without  stating  for  whom  the 

1  But  contra,  see  Pinckney  v.  Key-  6  gee  §  323. 
ler,  4  E.  D.  Smith,  469.  '  §  305  et  seq. 

2  See  §  408,  and  Leiden  v.  Law-  8 1^  ise. 
rence.  2  N.  R.  283 ;  Detroit  v.  Robin-  »  §  205. 
son,  42  Mich.  198.  logg  80,  446. 

3  De  Tastet  v.  Carroll,  1  Stark.  88.  "  §§  316-339. 

4  Wilson  V.  Elliott,  57  N.  Y.  316.  1^§  447. 
8  Huguley  t\  Morris,  65  Ga.  666. 

3S9 


^377.  CONDUCT  OF  THE  BUSINESS. 

goods  are  intended.*    When  a  partner  subsequently  misappropri- 
ates the  purchase  to  his  own  use.' 
Checks. —  Power  to  draw.* 

CONFESSIONS  OF  JUDGMENT  BY  ONE  PARTNER. 

§  377.  No  such  power,  and  why.—  The  rule  is  nearly  uni- 
versal that  one  partner  cannot  execute  a  power  to  confess  a 
judgment  against  the  firm  without  the  consent  of  his  co- 
partners. I  have  not  been  able  to  ascertain  the  origin  of  the 
rule;  although  some  cases  put  it  upon  the  want  of  power  to 
bind  the  firm  by  a  sealed  instrument,  yet  this  cannot  be  the 
true  reason.  No  seal  was  needed  at  common  law  to  such  an 
instrument.  Nor  is  there  any  such  magic  in  a  scrawl;  and 
as  there  is  no  difference  in  effect  or  consequences  whether 
the  judgment  was  on  a  power,  with  or  without  seal,  the 
reason  is  unworthy. 

Money  is  generally  not  paid  without  deliberation,  but 
promises  may  be  very  rashly  made,  and  the  true  grounds  are 
probably  more  practical  ones,  and  are  three:  1st.  It  enables 
one  partner  to  create  liens  on  the  private  and  individual 
property  of  his  copartners;  this  objection  is  removed  where 
the  partnership  can  be  sued  in  the  firm  name.  2d.  Such  a 
power  is  not  necessary  to  the  management  of  the  joint  en- 
terprise, and  is  capable  of  great  abuse,  for  it  is  an  unlimited 
power  to  alienate,  incumber  and  materially  change,  not 
only  the  transitory  property  of  the  firm,  but  its  permanent 
investments,  and  enables  one  partner  alone  to  plunge  the 
firm  into  inextricable  debt,  which  might  absorb  the  whole 
fund  and  the  private  fortunes  of  each.  3d.  It  deprives  the 
other  partners  of  opportunity  to  make  a  defense,  and  cuts 
off  a  resort  to  the  regular  tribunals  quite  as  effectually  as 
the  power  to  submit  to  arbitration,  which  is  also  denied  to 
a  partner.  And  being  capable  of  such  abuse,  the  proper 
ground  for  denying  the  power  is  that  it  is  outside  the  scope 

i§447.  Ex.  163:  Bull  v.  O'Sullivan,   L.  R.  6 

2§  348.  Q.  B.  209;  Commercial  Nat.  Bank  v. 

i  See  Forster  v.  Mackreth,  L,  R.  2   Proctor,  98  111.  558. 

390 


PARTICULAR  POWERS  BEFORE  DISSOLUTIOxX,        §  377. 

of  the  business  and  beyond  the  true  hmits  of  the  partnership 
relation. 

It  is  true  that  in  many  states,  when  a  firm  has  been 
sued,  judgment  may  be  rendered  to  bind  the  partnership 
property,  though  but  one  partner  has  been  served  with 
process;  but  there  is  in  that  case,  at  least,  time  and  oppor- 
tunity to  learn  of  the  suit.  This  will  be  treated  hereafter. 
What  follows  here  relates  wholly  to  warrants  of  attorney  to 
confess  judgment  given  when  there  is  no  suit  pending.^ 

Code  provisions  allowing  a  confession  of  judgment  only  apply 
to  pending  cases,  and  do  not  apply  to  warrants  of  attorney.* 

Of  the  above  cases,  the  following  base  the  invalidity  of  the  judg- 

*The  following  are  the  authorities  ridge,  11  Oh.  233;  Richardson  v.  Ful- 
denying  to  a  partner  the  power  to  lor,  2  Oreg.  179;  Gerard  v.  Basse,  1 
execute  a  warrant  to  confess  judg-  Dull.  119;  Bitzler  v.  Shunk,  1  Watts 
nient  against  the  firm  without  the  &  S.  340;  37  Am,  Dec.  4(J9;  Cash  v. 
assent  of  the  copartners:  Hambridge  Tozer,  1  Watts  &  S.  519;  Harper  v. 
V.  De  la  Crouee,  3  C.  B.  742 ;  Hall  v.  Fox,  7  W.  &  S.  143 ;  York  Bank's 
Lanning.  91  U.  S.  160,170;  Elliott  u.  Appeal,  36  Pa.  St.  458;  Trenwith  7>. 
Holbrook,  33  Ala.  659;  Wilcoxson  r.  Meeser,  12  Phila.  366;  Hoskisson  v. 
Burton,  27  Cal.  228;  Green  v.  Rand,  Ehot.  62  Pa.  St.  393;  Mills  v,  Dick- 
2  Conn.  254;  Sloo  v.  State  Bank  of  111.  son,  6  Rich.  (S.  Ca.)  L.  487;  Shedd  v. 
2  111.  428 ;  Barlow  r.  Reno,  1  Blackf.  Bank  of  Brattleboro,  32  Vt.  709, 
253;  Hopper  v.  Lucas,  86  Ind.  43;  Remington  u.  Cummings,  5  Wis.  138; 
Christy  v.  Sherman,  10  Iowa,  535;  Holme  u.  Allan,  Tayl.  (Up.  Can.)  348; 
Edwards  v.  Pitzer,  13  Iowa,  607;  Huff  v.  Cameron,  1  Up.  Can.  Prac. 
North  V.  Mudge,  13  Iowa,  596;  Rep.  355;  Canada  Lead  Mine  Co.  v. 
Rhodes  v.  Amsinck,  38  Md.  345,  354;  Walker,  11  Low.  Can.  433,  435.  Even 
Soper  V.  Fry,  37  Mich.  236;  Hull  v.  the  borrowing  power  in  a  trading 
Garner,  31  Miss.  145;  Morgan  v.  partnership  will  not  authorize  one 
Richardson,  16  Mo.  409;  57  Am.  Dec.  member  to  secui'e  the  loan  by  a 
235;  Flannery  v.  Anderson,  4  Nev.  sealed  power  to  confess  judgment. 
437;  EIUs  v.  Ellis,  47  N.  J.  L.  69;  Hoskisson  v.  Eliot,  63  Pa.  St.  393. 
Green  r.  Beals,  3  Caines,  254;  Crane  Even  if  the  warrant  to  confess  is 
V.  French,  1  Wend.  311;  Stouten-  signed  by  two  persons,  it  is  pre- 
burgh  V.  Vandenburgh,  7  How.  Pr.  sumably  for  their  individual  indebt- 
229;  Everson  v.  Gehrman,  10  id.  301 ;  edness,  unless  proved  to  be  for  part- 
Lambert  V.  Converse,  22  id.  265;  nership  debt.  McKenna's  Estate,  11 
Bridenbecker  v.  Mason,  16  id.  203;  Phila.  84;  EUinger's  Appeal  (Pa.),  7 
McKee  v.  Bank  of  Mt.  Pleasant,   7    Atl.  Rep.  180. 

Oh.  3d  pt.  175;  McNaughten  v.  Part-       2  Richardson  v.  Fuller,  3  Oreg.  179. 

391 


g  379.  CONDUCT  OF  THE  BUSINESS. 

ment  on  the  want  of  power  in  one  partner  to  bind  another  under 
seal.' 

That  the  copartner  had  absconded  does  not,  it  seems,  authorize 
the  confession  of  judgment.  See  facts  in  Gerard  v.  Basse,  1  Dall. 
119.  Compare,  however,  the  doctrine  of  an  assignment  for  the 
benefit  of  creditors  by  one  partner  in  such  cases.* 

§  378.  Asseut  and  ratification. —  Prior  parol  assent  of  the 
other  partner  is  sufficient  authority.' 

The  cognovit  or  judgment  may  be  ratified  by  the  other 
partner,  and  this  may  be  proved  by  circumstances  showing 
assent;*  as  delay  to  object  to  the  judgment  for  eighteen 
months;^  or  admitting  that  it  was  "all  right;  "^  but  is 
only  good  from  the  date  of  ratification.^ 

§  3  7  9.  Yalid  against  the  partner  in  fault. —  The  judgment, 
however,  is  valid  aganist  the  party  who  executed  the  power, 
and  binds  his  individual  property  and  his  individual  interest 
in  the  partnership  property,  the  same  as  any  other  separate 
judgment.^ 

1  Gerard  v.  Basse,  1  Dall.  119;  cau  complain,  for  the  former  may 
Green  v.  Beals,  2  Caines,  254;  ratify.  Hamilton's  Appeal,  103  Pa. 
McNaughten  v.  Partridge,  11  Oh.  St.  368;  Grier  v.  Hood,  25  id.  430. 
223;  Remington  v.  Cummings,  5  But  if  the  confession  is  in  favor  of 
Wis.  138;  Ellis  v.  Ellis,  47  N.  J.  L.  the  separate  creditor  of  the  iudivid- 
69.  And  the  warrant  was  also  un-  ual  partner,  it  is  a  fraud  on  the  cred- 
der  seal  In  Ellis  v.  Ellis,  47  N.  J.  L,  itors  of  the  firm,  and  tiiey  can  attack 
69;  Hoskisson  v.  Eliot,  62  Pa.  St.  it  collaterally  on  distribution  of  the 
393;  Shedd  v.  Bank  of  Brattleboro,  fund  realized.  MuNaughton's  Ap- 
82  Vt.  709;  Cash  v.  Tozer,  1  Watts  &  peal,  101  Pa.  St.  550. 

S.  519.  3  Brutton  v.  Burton,  1  Chit.  707. 

2  In  Pennsylvania,  although  the  <  Bivingsville  Cotton  Mfg.  Co.  v. 
earlier  decisions  denied  the  power,  Bobo,  11  Rich.  (S.  Ca.)  L.  386;  Cash 
under  the  later  ones,  a  judgment  on  v.  Tozer,  1  Watts  &  S.  519;  Overton 
a  cognovit  note,  by  one  partner,  not  v.  Tozer,  7  Watts,  331. 

under  seal,  is  good  against  the  part-  5  Brown  v.  Cinqmars,  3  Up.  Can. 
nership  property,     Kneib  v.  Graves,    Prac.  Rep.  205. 

72  Pa.  St.  104;  Ross  v.  Howell,  84  « Record  r.  Record,  21  New  Bruns- 
Pa.    St.    129,     Even   if    the   partner   wick,  277. 

confessed  the  judgment  in  favor  of  ">  Wilcoxson  v.  Burton,  27  Cal,  22  \ 
himself  as  guardian.  Hamilton's  8  Gerard  u  Basse,  1  Dall.  119;  Hop- 
Appeal,  103  Pa.  St,  368.  Only  the  per  v.  Lucas,  86  Ind.  43;  North  v. 
other  partners  and  not  the  creditors   Mudge,  13  Iowa,  506;  Rhodes  v.  Am- 

393 


PARTICULAR  POWERS  BEFORE  DlSbOLUTiON,        §  3S0. 

Hence,  if  one  partner  without  authority  confesses  a  judgment 
against  the  firm,  and  then  both  confess  judgment  in  favor  of  an- 
other creditor,  the  latter  has  a  priority  over  the  other  on  distribu- 
tion.' 

If  the  individual  names  are  not  given,  the  judgment  cannot  be  a 
lien  on  the  land,  even  of  the  signing  partner." 

§  380.  Remedy  of  the  non-assenting  partner, —  The  English 
rule  has  been  said  to  be,  if  an  attorney  has  confessed  judg- 
ment on  the  unauthorized  warrant  executed  by  one  part- 
ner, and  is  in  solvent  circumstances,  to  uphold  the  judgment 
against  the  firm,  and  leave  the  other  partner  to  his  remedy 
against  the  attorney.^ 

This  rule  seems  in  every  way  unreasonable.  It  is  a  trap  for  the 
lawyer,  and  gives  the  innocent  partner  the  expense  of  a  law-suit, 
and  that  too  against  an  officer  of  the  court,  incumbers  judicial  rec- 
ords with  an  additional  action,  and  perhaps  discriminates  against 
the  needy  ones  of  the  lawyers.  Such  rule  was  not  applied  where  an 
execution  against  the  person  instead  of  against  the  property  of  the 
other  partner  was  issued,  because  he  could  not  be  compensated  for 
the  loss  of  his  liberty,  and  justice  would  not  be  complete  without 
setting  aside  the  judgment,  which  was  done.'* 

The  rule  in  the  United  States,  however,  distinctly,  is  to  re- 
lieve the  non-assenting  partner. 

Some  cases  hold  that  the  judgment  will  be  set  aside  as  to  the 
non-consenting  partner;  ^  others  that  execution  will  be  restrained 

Binck,  38  Md.  345,   354;  Flannery  v.    all  powers  of  attorney  to    confess 

Anderson,  4  Nev,  437;  Green  V.  Beals,    judgment,    the  judgment  was  held 

2  Gaines,    254;  Grane  v,   Freneli,  1    wholly  void  and  not  merely  voidable. 

Wend.  311;  York  Bank's  Appeal,  36   and  third  persons  can   impeach  it. 

Pa.    St.   458;  Mair  v.    Beck  (Pa.),  2   Mills  v.  Dickson,  6   Rich.  (S.  Ca.)  L. 

Atl.    Rep.    218;  Bitzer  v.    Shuuk,    1    487. 

Watts  &  S.   340 ;  37  Am.   Dec.  469.       3  See  Hambridge  v.  De  la  Grouee, 

And  see  g  421.     But  see  Trenwith  v.    3  C.  B.  732. 

Meeser,  12  Phila.  366.  *  Hambridge  v.  De  la  Grouee,  supra. 

iGraner.  French,  1  Wend.  311.  In  And  so  where  three  partners  had 
60  far  as  this  case  holds  the  judg-  agreed  to  give  the  warrant  of  attor- 
ment  to  merge  the  liability  of  the  ney,  and  only  two  signed  it,  the  judg- 
other  partners  for  tlie  debt,  it  is  not  ment  was  set  aside  as  to  them  for 
the  general  rule.     See  Merger.  imperfect     execution.       Harris      v. 

2  York  Bank's   Appeal,  36  Pa.  St.    Wade,  1  Chit.  3,'2. 
458.     Under  a  statute  making  void       5  Gerard    v.    Basse,    1    Dall.     119; 

393 


§  380.  CONDUCT  OF  THE  BUSINESS. 

as  against  individual  property  of  the  other  partner.'  Or,  as  there 
is  a  remedy  in  the  court  rendering  the  judgment,  a  remedy  cannot 
be  sought  in  chancery;'  nor  in  the  court  of  error;  ^  nor  by  col- 
lateral impeachment,  as  when  sued  in  an  action  on  the  judgment.* 
The  court  will  not  infer  without  proof  that  the  confession  was 
unauthorized.' 

McKee  v.  Bank  of  Mt.  Pleasant,  7  Oh.  was  no  suggestion  that  the  attorney 

2d  pt.  175.     And  see  Morgan  v.  Rich-  was  irresponsible,  the  court  refusing 

a rdson,  16  Mo.  409;  57  Am.  Dec.  235;  to  go  behind  the  record   to  inquire 

Thompson  v.    Eramert,  15    111.    415;  into    the  authoiMty.     Hammond  v. 

Everson    v.  Gehrman,    10  How.  Pr.  Harris.  2  How.  Pr.  115.     Contra,  if 

301.  *  he    is   irresponsible.     Groesbeck    v. 

1  Morgan  v.  Richardson,  16  Mo.  Brown,  2  How.  Pr.  21.  In  St.  John 
409;  57  Am.  Dec.  235;  Ellis  v.  Ellis,  v.  Holmes,  20  Wend.  60E),  the  court 
47  N.  J.  L.  69;  Christy  v.  Sherman,  refused  to  set  aside  the  judgment  on 
10  Iowa,  535;  Green  v.  Beals,  2  the  application  of  creditors,  or  of 
Caines,  254.  the  partner  who  executed  the  war- 

2  McKee  v.  Bk.  of  Mt.  Pleasant,  7  rant,  saying  that  only  the  party 
Oh.  2d  pt.  175;  Shedd  v.  Bk.  of  Brat-  aggrieved  could  complain;  and  in 
tleboro,  32  Vt.  709.  Stoutenburgh    v.    Vandenburgh,    7 

3  Remington  r.  Curamings,  5  Wis.  How.  Pr.  229,  the  juilgment  was 
138.  said  to  be  void  as  to  tbose  who  did 

*  Elliott  V.   Holbrook,  33  Ala.  659.  not  authorize  it ;  and  on  confession 

In      an      action      already    pending  in  a  pending  action   the   non-assent- 

against  the  firm,  since  the  statute  in  ing  partner  was  let  in  to  defend,  the 

New  York  allowing  judgment  to  be  judgment  standing,  however,  as  se- 

rendered  against  a  firm,  where  all  curily,  in  Grazebrook  i?. -McCreedie, 

the  partners  have  been  sued  though  9  Wend.  437;  and  Sterne  v.  Bentley, 

service  is  had   on  but  one,  that  one  3  How.  Pr.  331.     And  see  Everson  v, 

can  execute  a   warrant   to  confess  Gehrman,  10  How.  Pr.  301 ;  1   Abb. 

judgment  against  the  firm.     Graze-  Pr.    107,    where   the  judgment  was 

brook   V.    McCreedie,  9  Wend.  437;  against  the  explicit  and  known  wishes 

Pardeeu.  Haynes,  10  Wend.  031;  War-  of  the  other  partner.     Of  course,  in 

ingu.  Robinson,  Hoff.  (N.  Y.  j  Ch.  524;  case  of  collusion,  the  creditors  could 

Blodget  u.  Conklin,  9  How.  Pr.  442;  attack  the  judgment.    Stoutenburgh 

Leahey  v.  KingAn,  22  How.  Pr.  209 ;  v,  Vandenburgh,  siqjra.     An  appear- 

s.  C.  asLahey  v.  Kingon,  13  Abb.  Pr.  ance  in  admiralty  by  a  proctor  for 

192;  Binney  V.  Le  Gal,  19  Barb.  592;  all  the  defendants  is  sulHcient,  al- 

1  Abb.  Pr.  283.     But  even  this  rule  though  no  authority  for  one  is  shown, 

as  to  pending  cases  does  not  apply  Hills  v.  Rose,  3  Dull.  331. 
where  the  partner  seeks  to    confess       5  Edwards  v.  Pitzer,  12  Iowa,  60. 

in  person  and  not  by  attorney,  for  Remington  v.  Curamings,  5  Wis.  13" : 

there  is  no  presumption  of  authority  Elliott  v.  Holbrook,  33  Ala.  659.     I 

then.     Binney  u.  Le  Gal,  swpra.  Tlie  the  record  states  that  the  cojnov  i 

English  rule  was  applied  where  there  was  "by  the    defendants,"    this    Ja 

394 


PARTICULAR  POWERS  BEFORE  DISSOLUTION.        §  381. 

After  dissolution  there  is,  of  course,  no  such  power,  for  the  party 
is  no  longer  a  partner  and  cannot  bind  the  firm  to  any  new 
liability.* 

Contracts. — See  §§  376  and  392;  to  convey  real  estate, 
§  299. 

DEBTS. 

§381.  Power  to  collect  aud  receipt  for  debts  due  to  firm. 

Each  partner  in  every  firm  has  implied  power  to  collect  thi.' 
debts  due  the  firm.  This  follows  from  necessity,  for  tlu 
power  must  be  exercised  by  some  one,  and  it  would  be  too 
inconvenient  and  perhaps  impossible  for  it  to  be  by  the  joint 
act  of  all;  hence  payment  to  any  one  partner  extinguishes 
the  debt,  whether  before  or  after  dissolution.^ 

And  this  is  true  even  after  another  partner  has  directed 
the  debtor  to  pay  to  a  particular  partnership  creditor. 

As  where  a  firm  procured  advances  from  a  bank  to  buy  goods, 
and  a  factor  who  held  the  proceeds  of  the  goods  for  the  firm  after 
sale  was  ordered  to  pa}''  them  to  the  bank,  the  factor's  subsequent 

construed  to  mean  by  aU  who  were  P.  555 ;  Porter  v.  Taylor,  6  Moo.  &  S. 

served  with  process.    Hull  u.  Garner,  156;   Stead  v.  Salt,  y  Bing.   103;  Re 

31  Miss.  145.  Barrett,  2  Huglies,  444;  Williams  v. 

1  Rathbone  v.  Drakeford,  4  Moo.  «&  More,    63  Cal.    50;    Brown  v.  Law- 
P,  57;  Mitchell  v.  Rich.  1  Ala.  228;  rence,   5   Conn.   397;   Noyes  v.  New 
Waring  v.  Robinson,  Hoffm.  (N.  Y.)  Haven,  etc.  R.  R.  30  id.  1;  Gregg  v. 
524;  Mair  v.  Beck  (Pa.  1886),  2  Atl.  James,  Breese,  107;  Gordon  v.  Free- 
Rep.  218;  Bennet  v.  Marshall,  2  Miles  man,  11  111.  14;  Granger  v.  McGilvra, 
(Pa.),  436;  Canada  Lead  Mine  Co.  v.  24  id.  152;  Steele  v.  First  Nat'l  B'k, 
Walker,  11  Low.   Can.   433;  but  see  60  id.  23,  26;  Yandes  v.  Lefavour,  2 
Taylor  v.  Hill,  36  Md.  494.     Hence  a  Blackf.  371 ;  Selking  v.  Jones,  52  Ind. 
surviving     partner    cannot    confess  409;  White  v.  Jones,  14  La.  Ann.  681 
judgment  in  the  firm  name,  and  ex-  Cod  man   v.  Armstrong,   28   Me.  91 
ecution   against   the   firm    property  Vanderburg  v.  Bassett,  4  Minn.  242 
thereon  will  be  set  aside.     Castle  v.  Morse  v.  Bellows,  7  N.  H.  568;  Black 
Reynolds,  10  Watts,   51 ;  but  query,  v.  Bird,  1  Hayw.  (N.  Ca.)  273;  Salmon 
had  he  confessed  in  his  own  name.  v.  Davis,  4  Bin.   (Pa.)  375;  Allen  v. 
Id.  Farrington,    2   Sneed,  526;    Scott  v. 

2  Anon.  12  Mod.  446;  Duff  v.  East  Trent.  1  Wash.  (Va.)  77;  Carlisle  v. 
India  Co.  15  Ves.  198;  Brasier  v.  Niagara  Dock  Co.  5  Up.  Can.  Q.  B. 
Hudson,  9  Sim.  1;  King  v.  Smith,  4  (Old  Soiies)  060.  Hence  a  note  to  one 
C.  &  P.  108;  McKee  v.  Stroup.  Rice,  partner  of  a  creditcr  firm  by  a  debtor 
291 ;  Tomlin  V.  Lawrence,  3  Moo.  &  of    the   partnership    has    the    same 

S95 


S  382.  CONDUCr  OF  THE  BUSINESS. 

payment  to  another  partner  discharges  him,  the  bank  having  no 
lien  upon  the  fund.' 

And  if  a  note  is  made  to  one  partner,  expressing  on  its  face  to 
be  a  firm  debt,  and  the  payee  assigns  it  to  another  partner,  yet  be- 
ing partnership  property,  and  hence  held  for  the  firm,  payment  to 
any  of  the  partners  is  valid. '^ 

If  a  creditor  firm  has  a  partner  in  common  with  another  firm 
and  transfers  the  debt  to  the  latter,  payment  to  the  former  firm 
will  disqualify  the  latter  from  suing  upon  it.  Thus  an  accepted 
bill  between  third  persons  was  indorsed  to  the  firm  of  Blair  k 
Jacaud,  and  by  this  firm  to  Jacaud  &  Gordon,  these  two  firms  hav- 
ing a  common  partner,  Jacaud,  Before  maturity,  the  drawer  paid 
to  Blair  &  Jacaud  securities  for  the  extinguishment  of  this  paper, 
but  Blair  &  Jacaud  appropriated  the  property  to  their  own  use  and 
did  not  notify  Jacaud  &  Gordon  of  the  dej^osit  so  made  by  the 
maker,  Jacaud  &  Gordon  sued  the  acceptor.  Lord  EUeuborough 
held  that  Jacaud,  as  a  partner  of  Blair,  must  be  deemed  to  have 
received  the  funds  from  the  drawers  to  take  up  this  bill,  and  can- 
not, as  a  partner  of  Gordon,  contravene  his  own  act  and  sue  upon 
it  when  it  is  already  satisfied  as  to  him.  His  individuality  cannot 
be  severed.' 

We  have  elsewhere*  seen  that  the  right  to  pay  any  partner  can- 
not be  restricted  by  notice  from  the  other  partners  not  to  do  so, 
for  if  such  revocation  of  authority  were  permitted  the  whole  con- 
cern could  be  stopped  and  a  debtor  would  be  unable  to  pay  at  all. 

§  382.  Payments  not  in  money.* — A  partner  may  take  a 
bill  in  payment  of  a  debt,^  even  in  his  own  name/  and  pay- 
effect  as  a  note  to  the  firm.    Coursey  to  one  partner,  and  thus  made  his 
V.  Baiter,  7  Har.  &  J.  28.     One  joint    individual  property,  and  the  amount 
lessor  can  appoint  a  bailiff  to  distrain    ought  not  to  be  paid  to  another  part- 
for   rent  due  to    all.     Robinson    v.    ner  where  the  maker  has  notice  of 
Hofman,  4   Bing.  562;   1  Moo.  &  P.    the  transfer.     Stevenson  v.   Wood- 
474.     So  one  partner  can  agree  that    hull,  19  Fed.  Rep.  575. 
a  bank  account  due  the  firm  may  be       3  jacaud  v.  French,  13  East,  317. 
transferred  to  the  bank's  successor.        4^326. 
Beale  v.  Caddick,  2  H.  &  N.  326.  5 For  the  power  to  trade  out  debts 

1  Steele  v.  First  Nat'l  Bank,  GO  111.  in  property  for  separate  use,  see 
23.  §  411. 

2  Black  V.  Bird,  1   Hayw.   (N,  Ca.)       ^Heartt  v.  Walsh,  75  111.  200. 

273.  But  this  does  not  apply  to  a  note       ^  Tomliu  v.  Lawrence,  3  Moo.  &  P. 
made  to  the  firm  and  indorsed  by  it   555 ;  Coursey  v.  Baker,  7  Har.  &  J.  23 ; 

896 


PARTICULAR  POWERS  BEFORE  DISSOLUTION.        §  382. 

ment  of  such  note  or  of  a  judgment  confessed  to  one  partner 
on  a  firm  debt  satisfies  the  partnership  debt.' 

As  it  is  not  in  the  scope  of  business  to  take  notes  for  collection, 
if  a  partner  receives  the  note  of  a  third  person  from  a  debtor  of  the 
firm  to  collect,  pa}'  the  firm  and  give  the  debtor  the  balance,  but 
uses  the  balance  in  the  business  of  the  firm,  he,  and  not  the  firm, 
is  debtor  for  the  balance.''  But  where  a  debtor  gives  a  partner 
notes  to  collect  and  apply  the  proceeds  on  the  debt,  and  the  part- 
ner collects  one  and  indorses  the  amount  upon  the  debtor's  note  to 
the  firm,  this  binds  the  firm,  although  the  notes  were  receipted  for 
by  the  partner  in  his  individual  name.' 

A  partner  has  power  also  to  compromise  debts  due  to  the 
firm;*  hence,  one  partner  can  bind  an  absent  partner  by 
approval  of  an  extent  of  insurance  loss,*  and  can  settle  the 
loss.®  And  the  power  to  collect  implies  the  power  toper- 
feet  a  mechanic's  lien  to  secure  the  debt.^ 

Authority  to  receive  payment  of  a  debt  in  money  is  certainly  not 
authority  to  receive  it  in  any  other  way,  and  it  has  been  stated  to 
be  a  general  rule  that  one  partner  cannot  receive  payment  of  a  debt 
in  property.'  But  such  rule  is  subject  to  many  qualifications,  for 
the  nature  of  the  business  or  usage  of  the  trade  may  allow  debts  to 
be  traded  out  or  sales  to  be  made  payable  in  goods.'     Or  the  other 

Hogarth  v.  Wherley,  L.  R.  10  C.  P.  disabled  to  sue,  because  he,  as  a  nec- 

630.  essary    co-plaintiff,    is  thus    in   the 

iChapin  v.  Clemitson,  1  Barb.  311.  position  of  a  person  repudiating  his 

But  an  agent  of  the  firm  cannot  do  so.  own  act,  as  to  make  the  limits  of  the 

2Pickels  V.    McPherson,    59  Miss,  power  difificult  to  ascertain. 

216.     See  Hogan  V.  Reynolds,  8  Ala.  ^  Brink    v.   New  Amsterdam   Ins. 

59.  Co.  5  Robt.  (N.  Y.)  104. 

*  Brown  v.  Lawrence,  5  Conn.  397.  ^  Brown  v.    Hartford   F.  Ins.   Co. 

*  Noyes  v.  Newhaven,  etc.  R.  R.  30  117  Mass.  479. 

Conn.  1;  Doremus  v.  McCormick,  7  ^  German    Bank    v.     Schloth,     59 

Gill,  49;  Piersonu.  Hooker,  3  Johns.  Iowa,  516. 

70;    Cunningham    v.    Littlefield,    1  ^Lee    v.   Hamilton,    13  Tex.    413. 

Edw.  Ch.  104.  This  doctrine  is,  how-  Contra,  see  dictum  in  Vanderburgh 

ever,  so  entangled  with  the  doctrine  v.  Bassett,  4  Minn.  242. 

that  one  partner  having  by  settle-  9  Lee  u.  Hamilton,  12  Tex.  413,  418; 

ment  with  a  debtor  disqualified  him-  Warder  u.  Newdigate,  11  B.  Mon.  174, 

self    from    suing,  the    firm   is    also  177;  52  Am.  Dec.  567. 

307 


§  3S3.  CONDUCT  OF  THE  BUSINESS. 

partners,  by  retaining  the  property  thus  acquired,  may  ratify  the 
transaction.' 

Although  the  right  to  take  land  in  compromise  and  settlement 
of  a  sale  of  stock  may  exist  in  an  emergency  where  there  is  no  time 
to  consult,  yet  if  there  is  ample  time  and  no  emergency,  and  a  part- 
ner takes  the  deed  in  his  own  name,  though  in  good  faith,  the 
courts  are  not  willing  to  recognize  the  right  to  do  so  and  will  treat 
liim  as  a  trustee  who  buys  in  the  trust  propertj^  and  compel  him  to 
account  in  money  and  not  in  a  share  of  the  land.* 

The  power  to  collect  a  debt  by  process  of  law  is  involved  in  the 
ordinary  power  of  collection,  but  in  resorting  to  coercive  measures 
the  tortious  employment  of  extortionate  methods  does  not  render 
the  innocent  partners  liable.' 

Any  partner  can  act  in  relation  to  the  proof  of  debts  in  bank- 
ruptcy of  the  debtor,  and  can  vote  upon  the  choice  of  an  assignee 
and  sign  the  certificate.* 

§  383.  Releases. —  One  partner  has  power  to  release  a 
claim  due  to  the  firm  and  to  bind  the  other  partners  thereby, 
whether  it  be  a  claim  on  contract  or  in  tort,  or  before  or 
after  dissolution,  provided  there  be  no  fraud  or  bad  faith  or 
collusion.* 

After  an  action  by  the  firm  has  been  begun,  one  partner 
can  release  the  claim  to  recover  which  it  is  brought,^  even 

1  Michigan  AirLineR'y  v.  Mellen,  44  Ex  parte  Hall,  1  Rose,  2;  Ex  parte 
Mich.  321;  Loweiy  u.  Drew,  18  Tex.  Bignold,  2  Mont.  &  A.  633,  655;  Re 
786.  In  Banner  Tobacco  Co.  u  Jeni-  Barrett,  2  Hughes,  444;  Re  Purvis, 
son,  48  Mich.  459,  it  was  said  that  a  1  Bankr.  Reg.  163;  Emerson  v. 
partner  in  the  milling  business  could  Knower,  8  Pick.  63, 

take  a  stock  of  groceries  in  payment ;  *  Hawkshaw  v.  Parkins,  2  Swanst. 

the  question  was  not  squarely  pre-  539;  Arton  v.  Booth,  4  J.  B.  Moore, 

sented,   however,  for  it  arose   four  192;  Furnival  v.   Weston,  7  id.   356; 

years  afterwards  in  seeking  to  hold  Metcalfe  v.  Rycroft,  6   M.    &  S.  75; 

the  other  partner  on  new  purchases  "Wallace  v.  Kelsall,  7  M.  &  W.   264; 

to  replonisli   the  stock  of  groceries.  Phillips u.  CIngett,  11  id.  84:  Nottidge 

2  Russell  V.  Green,  10  Conn.  269.  v.  Prichard,  2  CI.  &  Fin.  379;  Dyer  v. 

sSeet-g  405-468.  Sutherland,  75  III.  583:  Emerson  v. 

*Ex  parte  Mitchell,   14  Ves.  597;  Knower,  8  Pick.  63;  Bulkley  v.  Day- 
Ex  parte  Hodgkinson.  19  id.  291,  293;  ton,  14  Johns.  387.  And  see  g  396. 
Ex  parte  Shaw,  1  Glyn  &  Jam.  127:  *  Barker  r.  Richardson,  1  Younge& 
Ex  parte  Bank  of  England,  2  id.  363;  J.  362,  366;  Arton  u.  Booth,  4  Moore. 


PARTICULAR  POWERS  BEFORE  DISSOLUTION.        g  383. 

where  such  partner  had  agreed  not  to  interfere  with  the  col- 
lection of  debts,^  and  can  release  the  judgment  if  not  fraudu- 
lently done.^  But  if  there  was  fraud  and  collusion  the 
courts  will  protect  the  other  partners  and  not  allow  the  de- 
fense to  be  pleaded;^  and  if  the  protection  of  the  copartner 
requires  it,  the  court  will  not  permit  one  partner  to  discon- 
tinue an  action.*  A  release  by  one  partner  by  fraudulent 
connivance  or  collusion  with  the  defendant  is  void.* 

Where  a  canal  company  owed  two  contractors,  partners,  over 
$100,000  for  construction  of  the  canal,  and  procured  a  secret  release 
from  one  for  a  consideration  of  about  $.3,000,  this  was  held  to  be 
a  gross  fraud  upon  the  other  partner,  and  his  action  in  his  own 
name  to  recover  for  work  and  labor  and  foreclose  a  mechanic's 
lien  was  sustained,  the  court  saying  that  the  other  partner  was  not 
a  necessary  party  because  in  the  position  of  one  who  had  assigned 
his  interest.^ 

On  the  other  hand,  on  proof  of  collusion  between  the  debtor  and 
some  of  the  partners,  it  is  held  in  New  York  that  the  other  part- 
ners cannot  set  aside  the  settlement  and  recover  the  debt  or  their 
share  of  it,  but  only  damages  for  waste  of  partnership  funds,  to  be  as- 
certained on  accounting.  That  they  have  the  right  to  be  placed  as 
if  the  full  debt  were  honestly  paid  and  they  had  their  aliquot  shares, 

192;  Furnival  v.  Weston,  7  id.  356;  Loring  r.  Brackett,  3  Pick.  403.  And 

Langdcile  v.  Langdale,  13  Ves.  167;  see  Holkirk  v.  Holkirk,  4  Madd.  50, 

Jones  V.  Herbert,  7  Taunt.  431 ;  Perl-  and  Winslow  v.  Newlan,  45  111.  145. 

berg  V.  Gorham,  10  Cal.  120;  Wilson  But  where  a  statute  provides  that  a 

V.  Mower,  5  Mass.  411;  Noouanv.  Or-  non-consenting  joint  claimant  may 

ton,  31  Wis.  265.  be   made  defendant,   the    objecting 

1  Arton  V.  Booth,  4  Moo.  192.  partner  may  be  allowed  to  withdraw 

2  Romain  v.  Garth,  3  Hun,  214.  and  tlie  court  will  permit  the  other 

3  Barker  v.  Richardson,  1  Y.  &  J.  partners  to  make  him  a  defendant. 
362;  Jones  v.  Herbert,  7  Taunt.  421 ;  Noonan  v.  Orton,  31  Wis.  265. 
Phillips  V.  Cl.igett,  11  M.  &  W.  84;  &  Barker  v.  Richardson,  1  Younge 
Loring  V.  Brackett,  3  Pick.  403;  &  J.  362;  Beatson  v.  Harris,  60  N. 
Noonan  v.  Orton,  21  Wis.  265;  Sloan  H.  83;  Sweet  v.  Morrison,  103  N.  Y. 
V,  McDowell,  71  N.  Ca.  356,  359-61.  235;  Noonan  v.  Orton,  31  Wis.  265. 
And  see  Skaife  v.  Jackson,  1  B.  &  C.  And  see  Loring  v.  Brackett,  3  Pick. 
421.  403. 

<  Cunningham  v.  Carpenter,  10  Ala.       ^Canal  Co.  v.  Gordon,  6  Wall.  561. 
109;  Daniel  v.  Daniel,  9  B.  Mon.  195; 

399 


§  3S3.  CONDUCT  OF  THE  BUSINESS. 

and  can  make  the  debtor  pay  this  when  ascertained,  even  if  they 
had  to  pay  the  full  amount  less  the  part  paid.' 

A  covenant  not  to  sue  is  not,  however,  a  release,  and  will  not 
constitute  a  defense.'  So  of  an  agreement  by  one  partner  to  pay 
the  debt  and  save  him  harmless,'  for  these  are  not  actual  releases; 
the  debtor's  remedy  is  by  action  for  breach  of  contract  against  the 
partner;  though  to  avoid  circuity  of  action,  if  no  injustice  would 
be  done,  it  might  be  treated  as  a  release  in  a  proper  case,  just  as  a 
set-off,  possibly,  against  one  partner,  might  be  allowed  in  some 
cases.  A  covenant  by  all  the  partners  not  to  sue  would,  however, 
operate  as  a  release.'' 

In  Richards  v.  Fisher,  2  Allen,  527,  the  firm  of  T.,  B.  &  F.  made 
a  demand  note  to  the  partner  B.;  afterwards  F.  retired  from  the 
firm,  H.  taking  his  place,  and  T.,  B.  &  H.  gave  F.  a  bond  that  they 
would  pay  all  the  debts  of  the  late  firm;  an  indorsee  of  the  note 
sued  the  old  partners  upon  it,  including  F.,  who  claimed  that  the 
bond  released  him.  It  was  held  that  the  bond  was  no  release  of  the 
note,  but  was  merely  equivalent  to  a  covenant  not  to  sue,  and  such 
covenants  are  only  good  as  releases  to  avoid  circuity  of  action 
when  no  injustice  will  be  done.  If  here  judgment  went  against 
T.  and  B.  alone  they  could  not  recover  from  H.,  for  in  the  bond 
H.  only  agreed  to  save  F.,  whereas  if  judgment  is  rendered  against 
F.,  he  can,  by  buit  on  his  bond,  compel  H.  as  well  as  T.  and  B.  to  pay. 

A  release  by  a  partner  after  he  had  sold  his  interest  to  a 
third  person  is  fraudulent.^    So  a  release  by  one  partner  of 

1  Sweet  v.  Morrison,  103  N.  Y.  235.  4  Deux   v.   Jeffries,    Croke's    Eliz. 

See  Longman  v.  Pole,  1  Moo.  &  M.  223,  352. 

that  the  other  partners  can  jointly  SBrayley    v.    Goff,    40    Iowa,    76. 

sue  a  third  person  who  colluded  with  Here  two  persons  bought  a  machine 

a  partner  to  injure  them.     This  sub-  in  partnership,  with  warranty,  and 

ject  is  complicated  with  the  doctrine  gave  a  note  in  payment.     In  an  ac- 

that  a  partner  who  has  disqualified  tion    on    the    note  one  can   set  up 

himself  to  sue  cannot,  as  co-plaintiff,  breach   of    warranty,    although   the 

seek   to  repudiate   his  own   act,  and  other   refuses   to  defend,  and  a  re- 

hence  the  action  is  defeated  as  to  all.  lease  of  damages  by  the  latter  after 

See  §^  1035-1048.  he  had  sold  his  interest  in  the  ma- 

2\Valmsley  r.  Cooper,  11  A.  &   E.  chine  was  held  fraudulent.     Dunck- 

21G;  3  Per.  &  Da  v.  149;  Emerson  v.  lee  v.  Greenfield  Steam   Mill  Co.   3 

Baylies,  19  Pick.  55.     And  see  §  385.  Foster,  245,   where  a  partner,  after 

3  Emerson  v.  Baylies,  19  Pick.  55.  the  firm  had  sold  a  claim,  attempted 

400 


PARTICULAR  POWERS  BEFORE  DISSOLUTION. 


§384. 


a,  firm  debt  in  consideration  of  a  discharge  of  his  separate 
debt  due  to  the  partnership  debtor  is  a  fraud  upon  the  co- 
partners. ^ 

And  after  a  partner  has  sold  to  his  copartner  all  his  interest  in 
the  assets,  his  discharge  of  a  debt  witho^it  consideration  will  not 
bind  the  buyer."  And  where,  after  dissolution,  it  is  agreed  that 
one  partner  shall  collect  the  debts,  a  release  by  the  other  in  order 
to  deftjat  an  action  and  to  subserve  his  private  ends  will  not  be  per- 
mitted to  be  set  up  as  a  defense.^ 

§  084.  Debts  due  from  the  firm. —  Each  member  of  the 
firm  has  implied  power  to  pay  its  debts.* 

In  Bray  v.  Morse,  41  Wis.  343,  B.  sued  M.  and  P.,  former  part- 
ners, on  notes  made  by  the  firm.     P.  made  default,  but  M.  pleaded 


to  release  it  by  dating  the  release 
back. 

1  Kendal  v.  Wood,  L.  R.  6  Ex.  248; 
Farrar  v.  Hutclunson,  9  Ad.  &  El. 
Ml ;  Barker  v.  Richardson,  1  Younge 
&  J.  3.2;  Piercy  v.  Fynney,  L.  R. 
12  Eq.  C9 ;  Harper  v.  Wrigley,  48  Ga. 
49r);  Casey  v.  Carver,  43  III.  2':5; 
Bennett  V.  District  Twp.  of  Colfax, 
53  Iowa.,  089;  Jackson  v.  Holloway, 
14  B.  Mon.  108;  Williams  v.  Brim- 
hall,  13  Gray,  463;  Craig  V.  Hul- 
Bchizer.  34  N.  J.  L.  33  i :  Chase  v.  Buhl 
Ironworks,  55  Mich.  139;  Gram  v. 
Cadvvell,  5  Cow.  489;  Evernghim  v. 
Ensworth,  7  Wend.  336;  Beudel  V. 
Ilettrick.  45  How.  Pr.  19S;  Broaddus 
V.  Evans,  63  N.  Ca.  633 ;  Thomas  v. 
Pennrich,  28  Oh.  St.  55;  Clark  v. 
Sparhawk  (Pa.),  2  Weekly  Notes, 
115;  Viles  v.  Bangs,  36  Wis.  131 ;  and 
see  §^  410,  411.  As  to  ratification, 
see  §  427.  Contra,  sustaining  the 
power  to  do  so:  Combs  v.  Boswell,  1 
Dana,  473  (dictum) ;  Ovvings  v.  Trot- 
ter, 1  Bibb,  157;  Beckham  u  Peay,  2 
Billey  (S.  Ca.),  L.  133;  Hells  v.  Coe, 
4  McCord,  L.  133.  In  Lamb  v.  Saltus, 
3  Brev.  (S.  Ca.)  130,  the  court  were 
equally  divided. 


2Lunt  V.  Stevens,  24  Me.  534.  And 
see  Gram  v.  Cadvvell,  5  Cow.  489; 
Combs  u.  Boswell,  1  Dana,  473.  See 
Legh  V.  Legh.  1  B.  &  P.  447. 

3  Barker  v.  Richardson,  1  Younge 
&  J.  363;  Gram  v.  Cad  well,  5  Cow. 
489.  A  composition  of  the  debts  of 
an  insolvent  debtor  was  signed  by 
his  creditors,  among  them  by  E.,  but 
it  did  not  appear  whether  his  signa- 
ture was  intended  to  apply  to  a  debt 
due  him  individually  or  a  debt  due 
his  firm.  It  was  considered  to  in- 
clude the  latter,  and  the  burden  is 
on  the  firm  to  show  the  contrary. 
Emerson  v.  Knower,  8  Pick.  63.  See 
Rice  V.  Woods,  21  Pick.  30;  and  Ilal- 
sey  V.  Whitney,  4- Mason,  200.  231. 

^Innes  v.  Stephenson,  1  Moo.  & 
Ry.  145;  Cheap  v.  Cramond,  4  B.  & 
Aid.  603;  Cannon  v.  Wiklman,  23 
Conn.  473,  493;  Murrell  v.  Murrell, 
33  La.  Ann.  1233;  AveriU  v.  Lyman, 
18  Pick.  351 ;  Tapley  v.  Butterfield,  1 
Met.  515;  35  Am.  Dec.  374;  Osborn 
V.  Osborn,  30  Mich.  48;  Tyson  v. 
Pollock,  1  Pa.  375 ;  Moist's  Appeal, 
74  Pa,  St.  106;  Scott  v.  Shipherd,  3 
Vt.  104.  And  see  cases  under  §  386 
et  seq. 


Vol.  1-23 


401 


§  3S5.  CONDUCT  OF  THE  BUSINESS. 

that  tho  firm  had  given  B.  collaterals  on  part  of  which  he  had 
realized,  but  had  not  credited  the  amount  on  the  firm's  notes.  It 
appeared  that  P.,  who  was  B.'s  son-in-law,  and  an  executor  of  her 
husband's  estate,  and  her  manager,  had  taken  notes  and  mort- 
gages made  to  the  firm  and  set  them  aside  as  collaterals  to  tho 
firm's  debt  to  B.,  and  had  received  payments  on  them,  for  which, 
however,  he  had  not  accounted  to  B.,  and  had  received  a  convey- 
ance to  himself  in  payment  of  one  of  the  mortgages.  B.  never 
had  possession  of  any  of  the  collaterals  and  never  authorized  P.  to 
hold  them  for  her.  M.  now  claimed  credit  for  the  payments  and 
deed  to  P.  Held^  after  the  dissolution,  one  partner  cannot  act  as 
agent  of  a  creditor  in  holding  obligations  due  the  firm  as  coUat- 
eral  for  the  creditor;  he  cannot  act  as  agent  for  both  sides.  Such 
conveyance  and  payment  may  inure  to  the  benefit  of  the  firm,  but 
not  of  B.' 

A  promise  by  one  partner,  after  dissolution,  to  pay  a  debt  due 
by  the  firm  is  the  promise  of  the  firm.  As  where  a  debtor  of  the 
firm,  in  payment,  transferred  his  claim  against  another  firm,  one 
of  the  partners  in  which  promised  the  creditor  firm  to  pay  it  to 
them;'  or  where  partners  are  engaged  with  others  in  operating  a 
lottery  scheme,  and  the  plaintifi"  delivered  his  lottery  ticket  to  one 
partner,  who  promised  to  pay  him  the  benefits,  the  whole  firm  is 
liable  for  the  prize  drawn  by  it.^ 

§  385.  Release  of  one  partner  Iby  creditor. —  The  general 
rule,  both  of  law  and  equity,  that  a  release  of  one  joint 
debtor  from  liability  releases  all,  a  fortiori  applies  to  dis- 
charge copartners.* 

1  Whether  a  partner  can  keep  a  Elliott  u  Holbrook,  33  Ala.  659,  667; 
debt  alive  for  his  own  benefit  after  Kendrick  v.  O'Neil,  48  Ga.  631 ;  Will- 
he  has  paid  it,  see  §  531.  iamson  v.  McGinnis,  11  B.  Mon.  74; 

2  Lacy  V.  McNeile,  4  Dow.  &  Ry.  7:  Tuckerman  v.  Newhall,  17  Mass.  581 ; 
Peyton  v.  Stratton,  7  Gratt.  880.  American  Bank  v.  Doolittle,  14  Pick. 

3  Anon.  V.  Layfield,  Holt,  434.  As  123,  126;  Rice  v.  Woods,  21  id.  SO. 
to  the  effect  of  a  promise  by  one  33;  Le  Page  v.  McCrea,  1  Wend.  164; 
partner  upon  the  statute  of  limita-  19  Am.  Dec.  469;  Burson  u.  Klncaid, 
tions,  see  S§  702-705.  1  Pa.  (Pen.  &  W.)  57.     To  be  effect- 

*  Cocks  V.  Nash,  9  Bing.  341 ;  ual,  such  a  release  must  have  a 
Cheetham  v.  Ward,  1  B.  &  P.  630;  consideration,  but  the  promise  of 
United  States  v.  Thompson,  Gilpin,  the  other  partners  to  be  sofely  re- 
614;  Willings  v.  Consequa,  Pet.  C.  C.  sponsible  is  a  consideration.  See 
301,  307;  Gray  i;.  Brown,  22  Ala.  262;    §505.      Whether    release    of  a  per- 

402 


FARTICULAR  POWERS  BEFORE  DISSOLUTION.        §  3S5. 

Only  a  technical  release  of  one  joint  debtor  is  available  as  a  de- 
fense to  his  co-debtors.  A  mere  promise  to  release  a  partner, 
where  the  promise  is  not  acted  on,  and  no  security  is  parted  with, 
is  a  nudum  pactum,  and  no  defense,  eitlier  lor  such  partner  or  his 
copartners,  unless  under  seal  so  as  to  import  consideration.'  An 
agreement  to  save  harmless  or  indemnify  is  not  a  release,  and, 
therefore,  no  defense  to  the  copartner;  even  though,  to  save  cir- 
cuity of  actions,  it  might  be  so  treated  if  there  were  only  two  per- 
sons concerned."  A  covenant  not  to  sue  one  partner  does  not 
release  the  other,  for  its  effect  is  merely  an  agreement  to  indemnify 
against  the  consequences  of  a  suit.^ 

An  agreement  of  partnership  creditors  to  look  only  to  the  part- 
nership property  and  to  discharge  one  partner  does  not  give  the 
separate  creditors  any  additional  rights,  for  it  does  not  injure  them, 
nor  does  it  bind  the  other  partner  if  he  pays.* 

son    includes    debts    owed    by  him  Am.  Dec.  584);  Keudrick  v.  O'Neil, 

jointly  with  another  depends  on  the  4S  Ga.  G31;  Sliotweli  v.  Miller,  1  N. 

intention  of  the  parties  as  shown  by  J.  L.  95  [81]. 

the  terms  of  the  release.  A  release  ^Dean  v.  Newhall,  8  T.  R.  Ifi8; 
of  all  causes  of  actions,  suits,  debts,  Walmesly  v.  Cooper,  11  Ad.  &  El. 
etc.,  which  the  releasors  now  have  216;  Roberts  v.  Strang,  38  Ala.  566; 
or  ever  have  had  in  respect  to  any  Mason  v.  Jouett,  2  Dana,  107 ;  Walker 
matter  from  the  beginning  of  the  v.  McCulloch,  4  Me.  421;  Luut  v. 
world,  includes  h'abilities  as  partner,  Stevens,  24  id.  534  ;  McLellan  v.  Cum- 
Hall  V.  Irons,  4  Up.  Can.  C.  P.  351.  berland  Bank,  24  Me.  5G6;  Shaw  v. 
A  release  of  a  partner  from  all  Pratt,  22Pick.  305;  Bemisv.  Hoseley, 
claims  individually,  and  as  one  of  16  Gray,  63;  Berry  v.  Gillis,  17  N.  H. 
the  firm,  is  a  discharge  of  him  in  9  (43  Am.  Dec.  584);  Harrison  v. 
his  capacity  of  surviving  partner,  Close,  2  Johns.  44y;  Rowley  r.  Stod- 
the  copartner  having  subsequently  dard,  7  id.  207 ;  Catskill  Bank  v.  Mes- 
died,  Beam  v.  Barnum,  21  Conn,  senger,  9 Cow.  37;  Bank  of  Chenango 
200.  A  release  of  all  demands,  made  v.  Osgood,  4  Wend.  607;  DeZeng  v. 
to  a  debtor  after  he  had  assigned  all  Bailey,  9  id.  336;  Hosack  v.  Rogers, 
of  his  property  to  a  preferred  cred-  8  Paige,  229.  See,  also.  Clayton  v. 
itor,  for  the  benefit  of  his  creditors,  Kynaston,  2  Salk.  573;  Lacy  v.  Kyn- 
is  void  for  fraud,  if  such  preferred  aston,  id.  575 ;  1  Ld.  Raym.  G88 ;  Hut- 
creditor  was  the  debtor's  dormant  ton  v.  Eyre,  6  Taunt.  289;  Price  v. 
partner  and  this  fact  was  concealed.  Barker,  4  E.  «fc  B.  760;  Durell  v. 
Carter  v.  Connell,  1  Whart.  392.  Wendell,  8  N.  H.  369;  Couch  v.  Mills, 

1  Evans  v.  Carey,  29  Ala,  99;  Fagg  21  Wend.  424. 

V.  Hambel,  21  Iowa,  140.  *  Witter  v.  Richards,  10  Conn.  37. 

2  Berry  v.   GiUis,  17  N.   H.   9  (43 

403 


§  387.  CONDUCT  OF  THE  BUSINESS. 

§  380.  reserving  claim  against  rest. —  If  the  release 

is  clearly  intended  not  to  prevent  an  action  against  all  the 
debtors  including  the  releasee,  and  is  for  his  benefit  alone,  it 
is  no  discharge  of  the  debt,  as  where  there  is  a  reservation  of 
the  right  to  sue  all.  This  is  in  effect  an  agreement  not  to 
make  the  debt  out  of  the  private  property  of  the  releasee. • 

So  if  one  of  the  partners  is  severally  as  well  as  jointly  liable,  as 
where  one  partner  is  drawer  or  acceptor  of  a  bill  on  or  by  the  firm, 
a  release  of  the  other  partners  is  not  a  release  of  him,'  nor  is  a 
release  of  the  drawer  a  release  of  his  liability  in  the  capacity  of  one 
of  the  drawee  firm.' 

In  Gilpatrick  v.  Hunter,  24  Me.  18,  it  was  held  that,  in  case  of 
tort  against  the  person,  the  damages  can  be  neither  estimated  nor 
divided, and  a  release  of  one  releases  all;  but  in  McCrillis^;.  Hawes, 
38  Me.  566,  it  was  held  that  if  the  tort  was  conversion  of  property, 
a  settlement  with  one  partner  for  his  half  did  not  preclude  an  ac- 
tion against  the  other,  and  the  declaration  could  be  for  conversion  of 
half,  although  it  was  agreed  that  under  such  declaration  but  half 
of  the  half  could  be  recovered. 

A  release  of  a  partner,  reserving  the  claim  against  the 
other,  is  no  discharge  of  the  latter's  hability  on  whatever  re- 
mains due.* 

§  387.  Statutes. —  Many  of  the  United  States  have  stat- 
utes enabling  a  creditor  to  compromise  and  settle  with  or 

1  Solly  V.  Forbes,  2  Brod.  &  Bing,  ler  r.  Herrick,  19  Johns.  129;  Bank 
38.  And  see  the  following  cases:  of  Chenango  v.  Osgood,  4  Wend. 
Thompson  v.  Springall,  3  C.  B.  540;  607;  Greenwald  v.  Raster,  86  Pa.  St. 
Willis  u.  DeCastro,  3  C.  B.  N.  S.  216;  45;  Williams  v.  Hilchings,  10  Lea 
Price  V.  Barker,  4  E.  &  B.  760.  And  (Tenn.),  326.  And  see  Kirby  u.  Tay- 
see  Bateson  r.  Gosling,  L.  R.  4  C.  P.  9.  lor,    6    Johns.   Ch.    242;    Lysagt    v. 

2  Hartley  v.  Manton,  5  Q.  B.  247.  Phillips,  5  Duer,  106.  But  see  Parme- 

3  Pearce  v.  Wilkins,  2  N.  Y.  469.       lee  v.  Lawrence,  44  111.   405.     A  re- 
■*  Browning  v.  Grady,  10  Ala.  999;    lease  of  all  claims  against  J.  S.  was 

Northern  Ins.  Co.  v.  Potter,  63  Cal.  held  not  to  be  a  release   of  J.  S.'s 

157;  Beam  v.  Barnum,  21  Conn.  200;  firm,  in  Reading  R.  R,  v.  Johnson,  7 

Seymour   r.  Butler,     8    Iowa,    304;  W.  &  S.  317.    The  other  partners  are 

Gardner  v.  Baker,  25  id.  343 ;  Clagett  only  liable  for  the  balance,  although 

V.  Salmon,    5   Gill    &    J.    314,    351 ;  their  ratable  proportion  exceeds  it. 

Shed  V.  Pierce,  17   Mass.  623;  Good-  Lowell  Nat'l  Bk  v.  Train,   2  Mich, 

nowv.  Smith,  18  Pick.   414;  Chand-  Lawyer,  37. 

404  ^ 


PARTICULAR  POWERS  BEFORE  DISSOLUTION.        §  388. 

release  one  joint  debtor  without  prejudice  to  his  claim  against 
the  rest.^ 

These  statutes  apply  to  partnerships,  for  partners  are 
joint  debtors.^ 

If  one  partner  is  thus  released  iiendente  lite  and  dismisserl  from 
the  case  the  issue  is  not  changed,  and  depositions  already  taken 
are  competent,  and  if  notes  are  sued  upon  they  in  effect  stand  for 
the  balance  due.' 

Under  these  statutes  a  release  may  be  made  in  and  under  the 
law  of  one  state  and  sought  to  be  availed  of  in  another  state.  In 
such  case  its  construction,  at  least  inter  se,  would  be  governed  by 
the  law  under  which  it  purported  to  be  made.*  But  its  effect  on 
the  other  partner  would  be  controlled  by  the  law  of  the  forum. ** 

§  388.  Inter  se. —  In  Lord  v.  Anderson,  16  Kan.  185,  a  partner 
sued  his  equal  copartners  for  an  accounting  and  settlement,  and 
pending  suit  settled  with  one  of  them  for  $100  for  his  share  of  the 
estimated  balance.  It  turned  out  that  the  entire  balance  due  the 
complainant  from  the  two  defendants  was  $1,281.  It  was  of  course 
held  that  this  released  one-half  the  debt,  and  he  could  only  recover 
$640.50  from  the  other  defendant. 

1  This  is  true  of  California,  Con-  109.  And  although  the  considera- 
NECTICUT,  Dakota,  Kansas,  Michi-  tion  of  the  release  was  taken  out  of 
GAN,  JIlNNESOTA,  MISSISSIPPI,  Mis-  partnership  funds.  Stitt  v.  Cass,  4 
souRi,  Montana,  Nevada,  New  Barb.  92.  That  "joint  debtors"  in  a 
Jersey,  New  Yors:,  Ohio,  Penn-  statute  includes  partners  is  shown 
sylvania,  Rhode  Island,  South  elsewhere  by  the  cases  on  statutes 
Carolina,  Vermont,  Virginia,  Wis-  allowing  service  of  summons  on  one 
CONSiN.     And  that  the  settlement  is  joint  debtor  to  bind  the  rest. 

in  full  of  each  partner's  entire  share  SHoldridge  v.  Farmers'  &  Mech. 

of  liability,    whetlier   in   fact   so   or  Bank,  16  Mich.  66. 

not,  is  enacted  in  MICHIGAN.  MiNNE-  4  Seymour  v.  Butler,  8  Iowa.  .304; 

SOTA.  Montana,  New  Jersey,  Ohio,  Holdridge  v.  Farmers'  &  Mech.  Bank, 

Rhode   Island,    South   Carolina,  16  Mich.  66. 

Vermont.  The  copartners'  right  to  5  Seymour  v.  Butler,  supra;  Green- 
call  upon  such  pai'tner  for  their  pro-  wald  v.  Kaster,  86  Pa.  St.  45;  but  see 
portion  is  reserved  in  Kansas,  Mich-  Beam  v.  Barnum,  21  Conn.  COO;  Rice 
igan,  Minnesota,  Missouri,  Mon-  r.  McMartin,  39  id.  573;  HoMridgeu. 
tana,  New  Jersey,  New  York,  Farmers'  &  Mech.  B"k,  16  Mich.  66, 
Ohio,  Pennsylvania,  South  Caro-  which  seem  to  regard  the  effect  of 
LINA.  the  release  on  the  other  partners  as 

2  Northern  Ins.  Co.  v.  Potter,  63  not  a  matter  of  remedy  and  to  be 
Cal.   157 ;   Grant^  v.  Holmes,  75  Mo.  governed  by  the  lex  loci  contractus. 

405 


§  389.  CONDUCT  OF  THE  BUSINESS. 

In  a  foot-note  tlie  reporter  suggests  a  supposed  case,  viz.:  Had 
tLe  partners  believed  that  ^1,200  would  be  fouud  due  the  complain- 
ant and  one  of  them  had  settled  with  him  for  ^600,  and  it  was 
found  that  but  SiOO  in  all  was  due  him,  would  he  be  allowed  to  re- 
cover half  of  this  from  the  other  partner  and  thus  receive  $800 
where  only  $100  was  due?  Clearly  the  payment  by  the  released 
partner  was  at  his  own  peril,  and  whether  he  could  recover  it  back 
or  not  is,  as  to  the  other  defendant,  res  inter  alios  acta} 

NOTICE  TO  ONE. 

§  380.  is  notice  to  all. —  Resulting  from  the  agency 

of  a  partner,  it  follows  that  notice  to  one  member  of  a  firm 
of  matters  within  the  scope  of  the  business,  or  in  reference 
to  a  partnership  transaction,  and  which  it  is  his  duty  to  com- 
municate to  his  copartners,  if  he  is  within  reach  and  able  to 
tell  them,  is  notice  to  all.  In  such  cases,  if  he  fail  to  notify 
the  other  partners,  they  cannot  avail  themselves  of  their 
io;norance  of  the  transactions  of  one  of  their  number  in  act- 
ing  as  their  agent. 

Thus,  notice  served  upon  one  of  the  defendant  partners  to  take 
depositions  is  notice  to  all;  ^  and  notice  of  appeal  by  one  partner  is 
notice  to  all.'  If  partners  have  signed  a  submission  to  arbitration, 
notice  to  one  partner  thereafter  is  sufficient.'*  Notice  to  one  of  a 
firm  of  consignees  or  factors  to  sell  is  notice  to  all.'  If  partners 
are  lessees,  no  doubt  notice  to  one  to  terminate  the  tenancy  is  suf- 
ficient.® Plaintiff's  acceptance  of  a  guaranty  made  by  a  firm,  noti- 
fied to  the  partner  who  delivered  it  to  him,  is  notice  to  the  firm  of 
the  acceptance.' 

So  of  a  demand  on  the  firm  in  the  scope  of  its  business;  as  Avhcre 
a  firm  of  attorneys  receives  money  belonging  to  a  client  who  de- 
mands it  of  one,  this  is  a  demand  on  the  firm.'    And  if  partners  are 

•  A  mere  majority  has  no  power  to  5  Howland  v.  Davis,  40  Mich.  545. 

release  the  liability  of  one  partner  to  <>See  Walker  v.  Sharpe,  103  Mass. 

the  fum.     §  433.  154. 

2  Cox  V.  Cox.  2  Porter  (Ala.),  533;  "i  New  Haven  Co.  Bk.  v.  Mitchell, 

Spaulding  v.  Ludlow  Woolen  Mill,  36  15  Conn.  2013,  219. 

Vt.  150.  8  McFarland  v.  Crary,  8  Cow.  253 

3 Miller  v.  Perrine,  1  Huu,  620.  (aff'd,  6  Wend.  297). 

•Haywood  v.  Harmon,  17  111.  477. 

406 


PARTICULAR  POWERS  BEFORE  DISSOLUTION.        §  390. 

mortgagees,  a  request  to  one  to  cancel  tlie  mortgage  is  a  request  to 
all,  so  as  to  make  tliem  liable  to  a  statutorj'  penalty.' 

So  demand  upon  and  refusal  by  one  partner  is  competent  evidence 
of  a  conversion  by  the  firm.* 

§  3  90.  So  of  knowledge  of  one  partner. —  Where  one  partner 
of  a  legal  firm  had  drawn  up  the  defendants'  articles  of  partnership 
and  knew  that  certain  partners  were  not  liable  for  the  services  sued 
for,  this  is  knowledge  on  the  part  of  all  the  plaintiffs,' 

Where  the  debtor  of  a  firm  paid  the  debt  to  one  partner,  but  told 
another  that  he  had  not  paid,  whereupon  the  other,  in  winding  up 
the  firm,  sued  him,  he  is  not  precluded  to  deny  his  latter  statement; 
the  other  should  have  known.* 

Where  D.  bought  land  of  a  person,  giving  his  notes  with  sureties, 
and  agreed  with  the  sureties  to  secure  the  notes  by  shipping  bark 
to  the  firm  of  B.  &  Co.,  the  proceeds  to  be  applied  to  take  up  the 
notes,  and  B.  had  notice  of  the  purpose  of  the  shipments,  B.  &  Co. 
having  bought  the  notes,  cannot  sue  the  sureties  in  violation  of  the 
agreement." 

A  firm  bought  logs  on  credit  and  sought  a  rescission  on  the 

ground  that  it  was  represented  that  the  logs  were  afloat,  but  one 

pnrtner  knew  they  were  not  afloat;  this  is  knowledge  on  the  part  of 
.,11 « 

F.  was  trustee  of  Mrs.  T.  to  manage  a  fund  free  from  her  hus- 
band's control ;  he  loaned  the  trust  money  to  his  firm,  who  secured 
it  by  a  note  and  mortgage  payable  to  Mrs.  T.  Paj'ments  were 
made  on  the  note  to  her  husband  without  her  authority.  F.'s 
knowledge  of  the  husband's  disability  to  control  her  property  is 
notice  to  the  firm.'' 

A.  &  B.,  partners,  bought  lumber  of  the  defendant.  B.  measured 
the  lumber  before  dissolution  and  found  a  deficiency  in  quantity. 

iRinfrov.  Adams,  63  Ala.  302.  it  into  ties  or  staves  and  the  firm 

2Nisbet  V.  Pattou,  4  Rawle,  120;  purchased  it  after  one  partner  had 

Holbrook  V.   Wight,  24  Wend.  169;  notice.     Tucker  r.  Cole,  54  Wis.  539 ; 

Mitchell  V.  Williams,  4  Hill,  13;  ex-  Gerhardt  v.  Swaty,  57  id.  24. 

cept  where  the  taking  or  detention  is  sBurritt  v.  Dickson,  8  Cal.  113. 

not  a  pari nei  ship  act,  as  in  Taylor  v,  *  Bigelosv  v.  Henniger,  33  Kan.  363. 

Jon.'s.  42  N.  H.  2').     So  if  the  firm  5  Baugher  v.  Duphorn,  9  Gill,  314. 

purcliases  property   from  a  person  sHubbardston  Lumber  Co.  v, 

whom  one  partner  knows  to  have  ob-  Bates,  31  Midi.  158. 

tained  it  by  trespass,   as  wliere  the  ■?  Tucker  u.  Bradley,  33  Vt.  324. 

seller  cut  plaintifl's  timber  and  made 

407 


§  392.  CONDUCT  OF  THE  BUSINESS, 

A.,  after  dissolution,  paid  the  note.  The  knowledge  of  the  former 
is  that  of  the  latter;  A.  cannot  sue  for  money  had  and  received. 
The  court  say  B.  knew  it,  therefore  A.  knew  it.* 

§  31)1.  Notice  before  the  partnership  is  formed. —  Incom- 
ing partners  may  be  likewise  affected. 

Where  H.  contracted  to  deliver  glass  to  defendants  at  a  certain 
pric?,  and  afterwards  proposed  a  different  price,  to  which  they 
did  not  accede,  and  H.  then  transferred  the  contract  to  his  firm,  and 
they,  supposing  the  price  to  be  that  last  mentioned,  filled  the  or- 
der, they  are  affected  with  notice  of  all  that  he  knew,  and  can  only 
recover  the  contract  price.* 

Where  W.  was  teuant  in  common  of  oyster  beds  with  R.,  who 
lived  in  another  town,  and  W.  took  in  D.  as  a  partner,  and  shipped 
R.'s  share  of  the  oysters  to  D.,  W.'s  knowledge  is  notice  to  D.,  and 
R.  can  compel  D.,  as  surviving  partner,  to  account.' 

But  notice  before  the  firm  is  formed  is  not  sufficient. 

Where  M.  and  G.  were  negotiating  to  form  a  firm,  pending 
which  G.  was  negotiating  to  buy  premises  for  the  future  firm,  and 
on  the  day  before  the  purchase  M.  learned  that  the  seller  was  de- 
frauding his  creditors  in  this  disposition  of  his  property,  this 
does  not  affect  G.  The  court  say  the  authorities  are  limiting  the 
doctrine  of  constructive  notice,  and  that  they  will  not  stretch  it  to 
affect  an  innocent  man  who  pays  cash  down,  even  though  the  other 
partner  was  to  get  an  interest  in  the  purchase.'' 

And  where  a  person  holds  property  with  notice  of  an  unrecorded 
license  to  use  it,  and  another,  without  such  notice,  is  about  to  form 
a  partnership  with  him,  and  buys  an  undivided  interest  in  the 
property,  to  be  held  by  both  for  the  use  of  the  firm,  he  holds  his 
share  free  from  the  incumbrance,  for  they  were  not  then  partners; 
but  if  he  afterwards  buys  out  his  partner,  he  holds  as  tenant  in 
common  with  the  licensee,  having  had  notice  on  buying  the  second 
half.' 

§1^92.  On  purchases  of  property. —  So,  where  partners 
make  a  purchase,  the  knowledge  of  one  of  their  number 

iSnarrv.  Small,  13  Up.  Can,  Q.  B.  283,  289  (reversed  on  oilier  points. 
125.  in  28  id.  614). 

^Holtonv.McPike,  27Kan.  286.  <  DuffiU    v.   Goodwin,   23  Grant's 

'Ruckman  v.  Decker,  23  N.  J.  Eq.    Ch  (Up.  Can )  431. 

5  Herbert  v.  Odlin,  40  N.  H.  267. 
408 


PARTICULAR  POWERS  BEFORE  DISSOLUTION.        §  393. 

of  a  claim  or  lion  upon  the  property  is  knowledge  of  the 
firm.  Thus,  where  partners  took  a  mortgage  upon  land, 
and  one  partner  knew  of  a  prior  mortgage  upon  it,  the  record 
of  which  was  not  constructive  notice  because  of  defective 
execution,  this  is  notice  to  all.^ 

B.  owed  H.  ^205,  aud  in  payment  conveyed  land  to  him,  tak- 
ing back  a  bond  for  reconveyance  on  repayment,  but  never  re- 
corded the  bond,  and  conveyed  the  land  to  the  defendant  firm,  in 
payment  of  his  debt  to  them,  C,  the  active  partner,  having  notice 
of  the  bond.  B.  paid  C.  the  §205,  and  C.  agreed  that  a  reconveyance 
should  be  made,  instead  of  which  the  firm  dissolved,  C.  deeply  in- 
debted to  another  partner,  J.,  to  whom  he  conveyed  the  land,  J. 
having  no  knowledge  of  the  bond  or  the  payment.  J.  is  affected 
with  notice,  and  is  bound  to  carry  out  C.'s  agreement  to  reconvey.* 

§  3i)3.  Of  defenses  to  mercantile  paper. —  So,  where  a 
partnership  becomes  possessed  of  mercantile  paper,  the 
knowledge  of  defenses  on  the  part  of  one  partner  is  notice 
to  the  firm.  As  where  one  partner  knew  that  a  note  dis- 
counted by  him  for  the  firm  was  void  for  usury,'  or  where 
an  accommodated  party  is  a  member  of  a  firm  to  whom  the 
paper  subsequently  comes,  the  firm  has  notice  that  it  is  ac- 
commodation paper.*  So,  if  a  note  is  made  to  one  partner, 
and  he  transfers  it  to  the  other,  or  to  his  firm,  the  latter  is 
not  a  bona  fide  holder  without  notice.^ 

In  Llddell  v.  Grain,  53  Tex.  549,  it  was  held  that,  where  one 
partner  made  false  representations  in  a  sale  of  his  individual  inter- 
est in  the  partnership  property,  for  which  he  received  the  buyer's 
note,  the  other  partner  could  have  the  rights  of  an  innocent  holder 

1  Watson  V.  Wells,  5  Conn.  468;  Stockdale  v.  Keyes,  79  id.  251 ;  Pease 
Herbert  v.  O  llin,  40  N.  H.  2G7.  v.   McClelland,   2    Bond,    43,    where 

2  Barney  t\  Currier,  1  D.  Chip.  (Vt.)  they  were  partners  for  that  trans- 
815  (6  Am.  Dec.  739);  and  another  action  only;  Hubbard  u.  Galusha,  23 
example  of  such  notice  will  be  found  Wig.  398.  In  Stockdale  v.  Keyes, 
in  Marietta  &  Ciu.  R.  R.  v.  Mowry,  where  a  factor  of  a  firm  collubively 
28  Hun,  79.  procured  the  firm's  signature  to  an 

'  Powell  r.  Waters,  8  Cow,  GG9,  691.    accommodation  note,  and  a  banking 

*  Sparrow  v.  Chisman,  9  B.  &  C.  partnership  in  which  he  was  a  mem- 
241;  Quinu  v.  Fuller,  7  Cush.  224.         ber  discounted  it,  his  knowledge  was 

*  Otis    V.    Adams,     41     Me.    258;    held  to  be  theirs. 
McClurkan  v.  Byers,  74  Pa.  St.  405 ; 

409 


§  394.  CONDUCT  OF  THE  BUSINESS. 

of  the  note,  if  lie  had  no  notice,  because  the  sale,  being  of  his  indi- 
vidual interest,  and  not  of  partnership  property,  was  not  a  trans- 
action in  the  scope  of  the  business. 

Where  the  burden  of  proof  is  upon  partners  who  are  plaintiffs,  as 
indorsees  of  a  note,  in  an  action  upon  it,  to  show  that  they  took  it 
in  good  faith,  they  must  prove  that  all  the  partners  were  ignorant 
of  the  fraud  or  defense  between  the  maker  and  payee,  for,  as  notice 
to  one  is  notice  to  all,  ignorance  of  one  cannot  be  ignorance  of  all. 
Otherwise  an  ignorant  partner  could  be  put  forward  to  purchase 
because  of  his  innocence.' 

§  394.  KnoAvledge  obtained  in  other  capacities.— Where  a 

partner  was  the  director  and  vice-president  of  a  bank,  in  which  the 
firm  owned  stock,  and  the  firm  sold  its  stock  to  one  H.,  who  was 
indebted  to  the  bank,  and  H.  sold  the  stock  to  the  bank,  and  got 
credit  for  money  to  pay  the  firm  for  it,  upon  which  he  checked  in 
favor  of  the  firm,  the  director  partner  is  affected  with  knowledge 
that  11.  had  no  funds,  except  what  he  got  from  the  sale  of  the  stock, 
and  the  bank  had  no  power  to  buy  its  own  stock;  therefore,  the 
bank  can  compel  the  firm  to  take  back  the  stock  and  return  the 
money  to  it.* 

Transfer  of  a  note  to  a  firm,  one  of  its  members  being  trustee  of 
the  company  owning  the  note,  is  with  notice  of  want  of  authority 
in  the  company  to  transfer  it.^ 

D.  was  a  director  in  a  corporation  which  was  indebted  to  the  firm 
of  D.  &  Co.,  of  which  he  was  a  member,  and  the  corporation  made 
a  note  payable  to  a  bank,  agreeing  that  if  its  discount  was  procured 
they  would  pay  D.  &  Co.  their  debt.  The  note  was  delivered  to 
D.  to  procure  such  loan,  and  the  bank  discounted  it  and  handed 
him  the  proceeds;  but  he  paid  only  part  of  the  debt  to  D.  &  Co., 
and  used  the  balance  for  other  purposes.  Here  it  was  held  that  the 
debt  was  not  paid,  because  D.  took  the  note,  and  received  the 
money  in  the  capacity  of  director,  and  not  of  partner,  and  it  was 
therefore  the  defendant's  mone}-.'' 

So  where  one  firm  receives  a  note  indorsed  by  another  firm,  in 
payment  of  the  individual  debt  of  a  member  of  the  latter,  and 
therefore  knows  the  note  is  unauthorized,  and  the  firm  sold  the 

1  Frank  v.  Blake,  58  Iowa,  750.  »  Smith  v.  Hall,  5  Bosw.  819. 

2  Savings  Bank  u.  Wulfekuhler,  19  ^Duncklee  v,  GreenfielJ  Stearu 
Kan.  GO.    See,  also,  Merchants'  Bank    Mill  Co.  3  Foster  (23  N.  H.),  245. 

V.  Rudolf,  5  Neb.  527. 

410 


PARTICULAR  POWERS  BEFORE  DISSOLUTION.         §  395. 

note  to  a  banlc  in  which  one  of  its  partners  was  director,  his  knowl- 
edge is  not  its  knowledge,  because  not  acquired  in  its  business.' 

§  305.  As  affected  by  scope  of  business. —  The  notice  to  a 
partner,  to  affect  the  firm,  must  be  a  notice  in  reference  to  a 
transaction  within  the  scope  o£  the  business.^ 

In  Bignold  v.  Waterhouse,'  one  member  of  a  firm  of  carriers 
colhisively  agreed,  lor  a  consideration  for  his  own  benefit,  to  carry- 
parcels  for  B.  free  of  charge.  B.  was  aware  of  a  rule  of  the  firm 
not  to  be  liable  for  parcels  of  over  £5  value,  without  notice  of  the 
fact  and  entry  of  the  parcel  as  such.  Here  the  agreement  to  carry 
free  of  charge  being  outside  the  scope  of  the  partner's  authority, 
such  partner's  knowledge  of  the  value  of  the  parcel  is  not  notice 
to  the  firm.'' 

So  where  he  has  trust  funds  in  his  hands,  and  uses  them  for  the 
firm,  his  knowledge  as  trustee  of  the  abuse  of  trust  is  not  notice  to 
the  firm  of  the  nature  of  the  funds.^ 

And  for  the  same  reason  notice  to  a  firm  will  not,  as  a  construct- 
ive notice,  aff'ect  the  separate  individual  interests  or  rights  of  a 
member  not  connected  with  those  of  the  firm.*  Of  course  where  an 
averment  charges  partners  with  notice,  the  default  of  one  part- 
ner is  not  an  admission  of  notice  against  copartners  who  plead 
want  of  it.' 

And  vice  verm  if  one  partner  is  the  agent  of  a  third  person,  his 
knowledge  of  the  limitations  upon  the  powers  of  the  partners  is 
not  knowledge  of  such  person  in  matters  not  relating  to  the  agency. 
As  where  T.  &  Co  ,  being  agents  of  the  plaintiff,  dissolved,  and  T. 
formed  the  new  firm  of  W.,  T.  &  Co.,  the  new  firm  agreeing  not  to 
deal  in  repairs,  and  T.  then  obtained  a  renewal  of  the  agency  from 
the  plaintiff,  and  receipted  to  the  plaintiff  for  work  done  in  repair- 
ing, T.'s  knowledge  as  a  member  of  the  firm  is  not  the  knowledge 

1  Atlantic  State  B'k  v.  Savery,  83  other  partner  of  the  character  of  the 
N.  Y.  291  (aff.  18  Hun,  36).  funds,  notice  to  the  firm.     Evans  v. 

2 Coon  V.  Pruden,  25  Minn.  105.  Bidlemau,  .3  Cal.  435. 

s  1  M.  &  S.  255.  6  Coon   v.    Pruden,    25   Minn.   105; 

<  And  see  Lacey  v.  Hill,  4  Ch.  D.  Boiling  v.  Anderson,  4  Baxt.  (Tenn.) 
537,  that  knowledge  of  the  clerks  of    550. 

the  firm,  of  the  guilty  partner's  con-        "  Pengnet  v.  McKenzie.  G  Up.  Can. 
duct,  is  not  notice  to  the  firm.  C    P.    oOS ;    Petty    v.    Hauuum,    3 

8  See  §  481.     Nor  is  notice  to  an-    Humph.  103. 

411 


§  S»G.  CONDUCT  OF  THE  BUSINESS. 

of  the  plaintiff,  for  in  contracting  to  form  the  relation  of  principal 
and  agent,  they  are  in  antagonistic  positions.' 

Where  a  member  of  two  firms  made  a  note  in  the  name  of  one 
firm,  payable  to  a  member  of  the  other  for  a  loan  by  him  to  it,  and 
the  articles  of  the  maker  firm  were  claimed  in  argument  to  exclude 
the  power  to  borrow,  it  was  urged  that  the  knowledge  of  the  com- 
mon partner  was  notice  to  the  payee,  but  a  recovery  was  allowed 
by  the  court  without  noticing  the  point.' 

A.,  being  indebted  to  B.  &  C,  proposed  that  B.  &C.  should  make 
advances  to  him  against  consignments  l)y  him  to  his  agents  abroad, 
the  proceeds  of  sales  above  the  advances  to  be  credited  on  the  debt. 
And  B.  &  C.  accordingly  made  the  advances,  and  afterwards  di- 
rected the  consignees  to  remit  to  the  firm  of  C.  &  D.,  bankers, 
instead  of  to  themselves;  C.  being  a  common  partner  in  both  firms. 
B.  &  C.  became  bankrupt.  It  was  held  that  C.  &  D.  had  notice 
through  the  common  partner  that  the  remittances  were  appropri- 
ated: 1st,  to  repay  the  advances  (which  had  been  made  by  accept- 
ances); 2d,  to  discharge  the  old  claim  against  A.' 

§  390.  As  affected  by  duty  and  opportunity  to  oonimuni- 

cate. —  The  knowledge  of  an  absent  partner,  where  it  is  not 
of  a  matter  which  it  was  his  duty  to  communicate  to  his 
copartners,  as  in  some  business  done  or  commenced  by  him, 
is  not  constructive  notice  to  the  firm. 

Thus,  where  defendant  buys  goods  of  a  firm,  without  disclosing 
that  he  is  buying  as  agent  of  another,  he  is  personally  liable 
therefor,  although  on  a  previous  occasion  he  had  notified  the  now 
absent  partner  that  he  desired  to  buy  as  such  agent,  which  was 
then  refused  because  the  firm  did  not  have  the  goods  on  hand.'* 

So,  where  the  firm  of  R.,  H.  &  E.  having  hay  to  sell,  the  defend- 
ant L.  asked  R.  to  sell  to  him,  stating  that  he  desired  to  purchase  as 
the  agent  of  K.  R.  replied  that  the  hay  was  not  ready,  and  L.  said 
he  would  call  again.  Four  weeks  afterwards  L.  bought  the  hay  of 
H.,  another  partner,  not  disclosing  that  he  purchased  as  agent.  L. 
was  held  personally  liable  as  an  agent  dealing  in  his  own  name, 

1  Aultman  &  Taylor  Mfg.  Co.  v.  Gano  v.  Samuel,  14  Oli.  593,  that  tlie 
Webber,  4  111.  App.  437.  partner  had  power  to  borrow, 

2  Moore  v.   Gano,   12  Oh.  300.     It       3  Steele  v.  Stuart,  L.  R.  2  Eq.  84. 
was  subsequently  held,  however,  in       *  Baldwin  v.  Leonard,  39  Vt.  2C0. 

412 


PARTICULAR  POWERS  BEFORE  DISSOLUTION.         g  398. 

the  agency  being  unknown.  The  prior  conversation  with  U.  is  not 
part  of  the  bargain,  because  R.  was  not  in  duty  bound  to  communi- 
cate it,  and  could  assume  that  L.  would  notify  the  other  partners  if 
he  bought  from  them.' 

§  397.  Protesting  notes,  etc.;  demand  on  one. —  If  tho firm 
is  the  maker  of  a  note  or  acceptor  of  a  bill,  presentation  to 
one  partner  or  demand  of  payment  upon  one  is  sufficient  to 
cliarge  the  indorsers.  ^ 

And  after  dissolution  a  demand  upon  one  is  a  demand 
upon  all  to  charge  indorsers.  This  follows  from  the  author- 
ity of  each  partner  to  wind  up,  and  in  so  doing  to  pay  debts, 
and  hence  each  represents  all* 

§  398.  notice  to  one  of  indorsing  firm. —  If  the  firm 

is  an  indorser,  notice  of  non-payment  or  protest  served  upon 
one  partner  binds  the  firm.* 

If,  however,  one  partner  lives  where  the  note  is  protested,  and 
the  other  has  moved  away,  it  is  not  due  diligence  to  send  notice 
only  to  the  one  abroad,  and  the  one  at  home  is  not  bound  by  it.* 

Where  C,  in  S.in  Francisco,  was  a  partner  in  the  house  of  Page, 
Bacon  &  Co.,  of  St.  Louis,  and  drew  a  draft  in  their  names,  notice 
of  dishonor  on  the  firm  in  St.  Louis  binds  the  partners  there.* 

1  Baldwin  v.  Leonard,  39  Vt.  260.  makers,  who  suffer  judgment  by  de- 

2Porthouse  v.  Parker,  1  Camp.  83;  fault,  service  of  a  rule  nisi  upon  one 

Mt.  Pleasant  Branch  of  State   Bank  of  the  defendants  to   compute  prin- 

V.   McLeran,  26  Iowa,    306;  Shed   v.  cipal  and  interest  is  service  upon  all, 

Brett,  1  Pick.  401;  Hunter  r.  Hemp-  because   they  are   as   to   it  partners. 

Btead,  1  Mo.    [67J,  4S  (13  Am.    Dec.  Collyer  on   Part.   §  443,  citing   Fig- 

468);  Erwiu  v.  Downs.  15  N.  Y.  575.  gins  v.  Ward,  2  Cr.  &  M.  424;  Carter 

3  Brown    v.   Turner,    15  Ala.    832;  u.  Southall,  5  M.  &  W.  128. 

Barry  v.  Crowley,  4  Gill,  194;  Gates  ^Hume  v.  Watt,  5  Kan.    34;  Nott 

V.    Beecher,    CO  N.  Y.  518   (19  Am.  v.    Douming,  6    La.    084;  Magee  v. 

Rep.  207)  (infra,   3  Th.    &  C.    404);  Dunbar,  10  id.  546;  Dabney  u.   Stid- 

Fourth    National      Bank    v.     Heu-  ger,  4  Sm.  &  Mar.  749  (with  a  doubt, 

schen,  52  Mo.  207.  And  demand  upon  however,  in  case  the  indorsement  is 

the  agent  of  one  partuer  when  both  not  joint);  Bouldin    r.  Page,  24   Mo. 

are  absent  is  sufficient.      Brown  v.  594;  Miser  v.  Trovinger,  7   Oh.   St. 

Turner,  sitpra.     Demand  after  death  281,  287;  Burnet  t7.  Howell,  8  Phila. 

should,  of  course,  be  upon    the   sur-  531. 

vivor.     Cayuga  Co.    Bank   u.  Hunt,  » Hume  r.  Watt,  5  Kan.  34. 

2  Hill,  635.    So  under  the  old  EngUsh  «  Bouldin  v.  Page,  24  Mo.  594. 
practice,  in  an  action  against  joint 

413 


§  399.  CONDUCT  OF  THE  BUSINESS. 

Statutes  malving  partnership  contracts  joint  and  several  affect  the 
remed}'  only,  and  do  not  alter  the  rule  that  notice  to  one  is  notice 
to  all.' 

And  notice  of  protest  to  one  partner  of  non  payment  of  a 
note  or  bill  maturing  after  dissolation  is  notice  to  all,  for 
the  same  reason  that  demand  upon  one  is  demand  upon  the 
firm.-  And  after  death  of  a  partner,  notice  to  the  surviving 
partner  binds  the  estate  of  the  decedent.* 

§  399.  dispensed  witb.—  One  partner  of  an  indorsing 

firm  may  waive  demand  and  notice,"  even  after  dissolution, 
provided  the  note  be  not  yet  matured,  because  it  is  not  a 
new  contract,  but  a  dispensing  with  certain  evidence;*  or 
may  direct  the  particular  mode  or  place  of  notice.^ 

If  the  dravv^er  is  partner  of  the  acceptor  firm,  or  if  a  part- 
ner draws  upon  his  firm,  the  dishonor  of  the  bill  need  not 
be  notified  to  the  drawer;  the  knowledge  of  the  firm  is  his 
knowledge.''    So  of  a  draft  by  the  firm  upon  one  partner.^ 

1  Dabney  v.  Stidger,  4  Sin.  &  Mar.  son  Nat'l  Bk.  6G  M.l.  488.  Hence,  an 
749.  admission  of  liability  l.y  one  partner 

2  Coster  V.  Thomason,  19  Ala.  717 ;  was  held  competent  evidence  as  tend- 
Nott  V.  Douming,  6  La.  684;  Slocumb  ing  to  prove  notice  or  waiver.  First 
V.  Lizardi,  21  La.  Ann.  355;  Hub-  Nat'l  Bk.  v.  Carjjenter.  U  Iowa,  4o3. 
bard  u.  Matthews,  54  N.  Y.  43  (13  If  the  note  was  indorsed  for  accom- 
Am.  Rep.  562),  where  the  dissolution  modation,  and  the  lioMer  knew  this, 
was  by  war,  and  the  partner  in  hos-  it  was  held  that  one  partner  could 
tile  territory  was  held  bound  by  not  bind  another  by  any  promise  as 
notice  on  the  residents;  Bank  of  to  its  payment,  because  as  to  this 
Commonwealth  v.  Mudgett,  44  N.  Y.  they  are  not  partners.  Baer  v.  Lep- 
514,  on  the  facts;  Burnet  v.  Howell,  pert,  12  Hun,  516. 

8  Piiila.  531.  6Nutt  v.  Hunt,  4  Sru.  &.  Mar.  702; 

»Dabiley  v.  Stidger,  4  Sm.  &  Mar.  Windham  Co.  Bk.  v.  Kendall,  7  R. 

749.     See  Cocke  v.  Bank  of  Tenn.  6  I.  77. 

Humph.  51.  7porthouse  v.  Parker,  1  Cnnip.  82; 

^Star  Wagon    Co.    v.    Swezey,  53  Rhett  v.  Poe,  2  How.  457;  Fuller  u. 

Iowa,    394;  s.  C.  59  id.  609;  Darling  Hooper,  3  Gray,  334;  Gowan  r.  Jack- 

V.   March,    22  Me.  184;  Farmers'   &  son,    20  Johns.    176;    West    Branch 

Mer.   Bk.    v.    Lonergan,   21    Mo.  46;  Bank  v.  Fulmer,  3  Pa.  St.  3!:9;  Har- 

Windham  Co.  Bank  v.  Kendall,  7  R.  wood  v.  Jarvis,  5  Sneed  (Tenn.),  37."). 

!•  "^T-  8  Porthouse  v.  Parker,  1  Camp.  83 ; 

5  Darling  v.  March,  22  Me.  184;  Star  N.  Y.  &  Ala.  Contrac.  Co.  v.  Meyer, 

Wagon  Co.  v.  Swezey,  52  Iowa,  394;  51  Ala.  325. 
S.  c.  59  id.  609 ;  Seldner  v.  Mt.  Jack- 

414 


PARTICULAR  POWERS  BEFORE  DISSOLUTION.        §  400. 

§  400.  partner  common  to  two  firms. —  So  if  a  part- 

nereliip  draws  on  another  partnership  and  the  latter  accepts,  if  one 
of  the  partners  is  a  member  of  both  firms,  no  notice  of  dishonor 
is  necessary  to  charge  the  drawers.* 

Where  one  partner  made  a  note  to  the  order  of  his  firm  and  they 
indorsed  it  over,  but  the  maker  did  not  pay  it  and  it  was  not  pro- 
tested, the  release  of  the  firm  by  not  protesting  does  not  release 
him  as  the  origiual  promisor;  nor  does  his  knowledge  of  the  dis- 
honor bind  them,  for  his  promise  as  maker  is  distinct  from  their 
liability  as  a  firm.  Their  contract  is  to  be  liable  on  condition  of 
demand  and  notice,  and  performance  of  the  condition  is  not  ex- 
cused by  the  relation  between  them.  The  firm  would  not  have 
been  charged  by  actual  information  of  dishonor.' 

And  if  one  firm  makes  a  note  to  another  firm  having  a  partner 
common  to  both,  the  latter  firm  are  not  liable  as  indorsers  unless 
there  has  been  due  demand  and  notice.* 

So  if  maker  and  indorser  are  or  had  formerly  been  partners  and 
the  note  was  for  a  partnership  debt.* 

The  difference  between  the  last  three  cases  and  those  which  pre- 
cede is  this:  In  the  last,  7ion  constat  but  that  if  the  note  had  been 
presented  it  would  have  been  paid,  for  the  parties  previously  liable 
may  have  funds  of  which  the  drawer  or  indorser  has  no  knowledge. 
But  in  the  former  cases  of  a  draft  by  a  partner  on  his  firm,  he 
knows  at  the  time  of  drawing  whether  they  are  solvent  or  not,  or 
whether  they  have  funds  belonging  to  him  with  which  to  meet  the 
paper. 

Deeds. —  See  Sealed  Instruments,  §  413. 
Delivery. —  §  375;  tender  to  one  partner,  §  390. 
Guaranty,  security  and  accommodation. —  The  want  of 
power  in  a  partner  to  use  the  firm  name  for  such  purposes 

1 N.  Y.  &  Ala.  Contracting  Co.  v.  3  Dwight  v.  Scovil,  2  Conn.  654; 
Selma  Sav.  Bk.  51  Ala.  305;  23  Am.  Poland  v.  Boyd,  23  Pa.  St.  476.  Tliat 
Rep.  552 ;  Woodbury  v.  Sackrider,  2  the  indorser  was  a  member  of  the 
Abb.  Pr.  402 ;  West  Brancli  Bank  v.  maker  firm  does  not  excuse  want  of 
Fulnier,  3  Pa.  St.  399.  In  Taylor  v.  protest,  though  the  firm  was  insolv- 
Young,  3  Watts,  339,  the  bill  by  au  ent  and  the  indorser  knew  the  note 
outgoing  partner  upon  his  firm  was  was  not  paid.  Re  Grant,  6  Law  Re- 
professedly  on  his  own  behalf  and  porter,  158. 
protest  was  held  necessary.  *  Morris  v.  Husson,  4  Sandf.  93. 

*  Coon  V.  Pruden,  25  Minn.  105. 

415 


§  401.  CONDUCT  OF  THE  BUSINESS. 

as  these  was  considered,  for  the  sake  of  convenience,  with 
the  power  to  make  hills  and  notes. ^ 

Indorse,  power  to. —  As  a  power  of  disposition,  §  401;  in 
accommodation,  §  349. 

Insure. —  Power  to  procure  insurance  on  property,  §  409. 

To  mortgage  personal  property,  §§  403,  400  et  seq. 

To  pay.—  See  §  384,  et  seq. 

To  pledge.— §406. 

PERSONAL  PROPERTY,  POWER  OVER. 

*  §  401.  Power  to  sell. —  Each  partner  has,  hy  reason  of 
his  agency,  power  to  sell  any  specific  part  of  the  partner- 
ship property  which  is  held  for  the  purpose  of  sale,  and 
make  a  valid  transfer  of  the  entire  title  of  the  firm  in  it.- 

Some  of  the  cases  and  many  of  the  dicfa  seem  to  apply  this  rule 
to  chattels  of  every  kind,  whether  held  by  the  firm  for  purposes  of 
sale  or  not.*  Thus,  a  sale  or  mortgage  of  a  ship  by  one  partner  in 
the  firm  name  has  been  held  good.'*  But  I  have  no  doubt  but  that 
the  power  of  sale  must  be  confined  to  those  things  held  for  sale, 
and  that  the  scope  of  the  business  does  not  include  the  sale  of 
property  held  for  the  purposes  of  the  business  and  to  make  a  profit 
out  of  it,  and  that  this  only  is  the  true  rule.* 

The  power  of  disposition  is  not  confined  to  tangible  chat- 
tels, but  extends  to  choses  in  action.  Each  partner  has  the 
same  power  to  sell  and  assign  them  that  he  has  over  other 

1  §  849  et  seq.  5  Hewitt  v.  Sturdevant,  4  B.  Mon. 

2  For  power  to  contract  to  convey  453,  that  a  sale  of  a  steamboat 
real  estate,  see  §  299.  owned  for  profit  is  void.    Cay  ton   v. 

3  Clark  V.  Rives,  33  Mo.  rm.  Hardy,    27  Mo.   536,  that  a  sale  of 
*  Ex  parte  Howden,  2  Mont.  D.  &    working  oxen   by  one  of  a  farming 

De  G.  571;  Lamb  v.  Durant,  12  Mass.  parLnersiiip  is  void.    Mussey  v.  Holt, 

54,   57   (7  Am.    Dec.    31);    Patch  v.  24  N.  H.  248  (55   Am.   Dec.   234),  of 

Wheatland,    8    Allen,    102    {contra,  a  lease  of  partnership  real  estate  by 

Hewitt  V.    Sturdevant,    4    B.    Mon,  one  partner.     Hudson    v.  McKenzie, 

453);  The  Wm.  Bagaley,  5  Wall.  377,  1  E.  D.  Smith,  358.     These  questions 

406.  But  a  sale  by  a  partner  in  charge  have  more  frequently  arisen  on  at- 

of    a  ship  at  sea  will  give  title  as  tempts  to  sell  the  entire  effects  of 

against  a  prior  sale  of  the   partner  the  firm  and  will  be  considered  more 

at  home.    Lamb  v.  Durant,  supra.  fully  in  treating  of  such  attempts. 

416 


PARTICULAR  POWERS  BEFORE  DISSOLUTION.        §  401. 

personal  property;^  as  to  change  the  bank  account  of  a  firm 
conducted  in  the  name  of  one  partner  to  a  distinctively  firm 
account.^ 

So  a  member  of  a  mining  partnership  can  agree  that  ore  shall  be 
delivered  to  a  mill  in  sufiBcient  quantities/ 

Each  partner  has  the  same  right  to  sell  and  indorse  over 
mercantile  paper  belonging  to  the  firm  that  he  has  to  sell 
any  other  property  before  dissolution.*  , 

An  indorsement  of  a  note  payable  to  the  firm  by  one  partner  in 
his  individual  name,  though  it  does  not  convey  the  legal  title  in 
the  note,  is  a  good  assignment  and  conveys  the  entire  beneficial  in- 
terest of  all  the  partners.^ 

So  where  a  note  was  payable  to  Propeller  Ira  Chaffee,  an  indorse- 
ment of  it  in  that  name  by  the  managing  partner  binds  the  firm.* 

An  indorsement  thus:  "  I  hereby  assign,"  etc.,  signed  in  the  firm 
name,  conveys  the  firm's  title.' 

Where  the  partners  divide  the  notes  of  the  firm  between  them, 
each  can  indorse  the  firm  name  on  his  own  notes  to  perfect  his 
own  title.* 

As  attorneys  sell  claims  when  authorized,  a  sale  of  notes  by 
one  of  the  firm,  if  within  the  apparent  scope  of  the  business,  may 
bind  the  owner  of  them  and  the  copartners,  although  there  was 
in  fact  no  right  to  sell  them.' 

Where  a  note  was  made  to  partners  in  their  individual  names, 

ICuUum  V.  Bloodgood,  15  Ala.  34;  Alabama  Coal  Min.  Co.  v.  Brainard, 

Caulfield   v.    Sanders,    17    Cal.    569 ;  35  id.  476 ;  Manning  v.  Hays,  6  Md. 

Mills  r.  Barber,  4  Day,  428 ;  Randolph  5;    First  Nat'l  B'k  v.    Freeman,  47 

Bank   v.    Armstrong,    11  Iowa,  515,  Mich.  408;  Commercial  B'k  u.  Lewis, 

assignment  of  a  judgment;  Everit  v.  13  Sm.  &  Mar.  226;  Windham  Co. 

Strong,    5  Hill,   163;    McClelland  u.  B'k  r.  Kendall,  7  R.  L  77;  Walker  v. 

Remsen,  36   Barb.  622 ;  14  Abb.  Pr.  K^e,  14  S.  Ca.  142 ;  16  id.  76 ;  Barrett 

331 ;  23  How.  Pr.  175;  3  Keyes,  454;  v.  Russell,  45  Vt.  43. 

3  Abb.  App.  Dec.  74;  Kull  v.  Tliomi>  &  Planters'  &  Mer.  Bank  v.  Willis, 

son,  38   Mich.  685;  Clarke  v.  Hoge-  5  Ala.  770;  Alabama  Coal  Min.  Co. 

man,  13  W.  Va.  718.  v.  Brainard,  35  id.  476.     See  §  194. 

2  Commercial  Nat'l  B'k  v.  Proctor,  6  First  Nat'l   B'k  v.    Freeman,  47 
98  111.  558.  Mich.  408. 

3  Pearson  v.  Post,  2  Dak.  220,  249.  7  George  v.  Tate,  102  U.  S.  564. 

4  Planters'  &  Mer.  B'k  t?.  Willis,  5  s  Mechanics'    B'k    v.    Hildreth,    9 
Ala.  770;  Cullum  v.  Bloodgood,  15  id.  Cash.  356. 

34 ;  Halstead  v.  Shepard,  23  id.  558 ;       »  Pierce  v.  Jarnagin,  57  Miss.  107. 
Vol.  1  —  27  417 


§  40J.  CONDUCT  OF  THE  BUSINESS. 

and  the  partner  assigns  it  by  indorsing  the  firm's  name,  this  proves 
title  in  the  assignee  as  against  the  maker.' 

§  402.  sales  with   warranty. —  The  usual   rule  of 

agency,  that  a  power  to  sell  implies  a  power  to  warrant 
quality  or  soundness,  obtains  in  sales  by  one  partner.^ 

So  of  a  sale  of  notes  falsely  stating  the  indorser  and  maker  to 
be  worth  a  certain  sum.  The  firm  was  held  liable  on  the  warranty.^ 
But  the  contrary  has  been  held  of  a  sale  of  a  judgment  guarantying 
its  payment  without  proof  of  usage.* 

In  Jordan  v.  Miller,  75  Va.  442,  a  partnership  was  formed  to  bay 
cattle  in  Tennessee,  and  bring  them  to  Virginia  for  sale,  and  cattle 
were  purchased,  but  the  price  in  Virginia  was  found  to  be  very 
low,  and  neither  sales  nor  pasturage  could  be  obtained.  Under  these 
circumstances  some  of  the  partners  made  a  contract  to  sell  the  cat- 
tle, guarantying  a  certain  profit  at  the  end  of  the  next  year,  and 
under  the  circumstances  this  was  held  not  to  be  in  excess  of  pow- 
ers. 

§  403.  Power  to  sell  the  whole  property. —  As  a  partner 
has  the  power  to  sell  whatever  is  held  for  sale,  and  as  it  is 
impossible  to  say  at  what  point  the  power  ceases,  it  follows 
that  he  has  the  power  to  sell  all  such  property  in  bulk  or  as 
an  entirety.  But  one  of  the  reasons  which  forbid  him  to 
assign  all  the  property  for  the  benefit  of  creditors  without 
the  consent  of  his  copartners,  if  they  are  accessible,  viz. :  that 
this  is  not  transacting  the  business  of  the  firm,  but  destroy- 
ing it,  applies  here  to  limit  the  power  of  selling  to  carrying 
out  the  business  of  the  firm,  and  furthering  its  objects. 

On  principle  it  would  seem  to  make  no  difference  whether 
the  property  is  real  or  personal.  If  it  is  property  in  the  con- 
tinued use  of  which  the  transaction  of  the  firm's  business 
depends,  he  has  no  implied  power  to  sell  it,  whether  it  be 
the  store  or  factory  in  which  the  trade  is  carried  on,  or  the 
office  furniture  or  safe,  or  partnership  books,'  or  the  ploughs, 

1  Mick  V.  Howard,  1  lad.  250.  6  The  case  of  Dore  v.  Wilkinson, 

2Diumright  v.  Philpot,  IG  Ga.  434;  2  Stark.  287,  is  not  to  the  effect  that 
60  Am.  Dec.  738.  a  partner  can  sell  the  books,  but  the 

3  Sweet  V.  Bradley,  24  Barb.  549.        dictum  is  that  if  tlie  purchaser  from 
*  Hamilton  u.  Purvis,  2  Pa.  177.  a  partner  had   bought  a  new  set  of 

418 


PARTICULAR  POWERS  BEFORE  DISSOLUTION.        §  40:j. 

horses  or  implements  of  a  farming  partnership,  or  the  tools 
and  machinery  of  a  mechanical  occupation,  or  the  library 
and  instruments  of  a  professional  one. 

It  is,  or  until  a  recent  date  was,  a  very  common  assertion, 
that  each  partner  had  the  power  to  dispose  of  the  entire 
partnership  effects.  In  the  note  are  collected  not  only  the 
decisions,  but  most  of  the  dicta  sustaining  this  power  more 
or  less  broadly.^ 

A  partner  has  a  power  to  mortgage  the  entire  stock,  sub- 
ject to  the  same  limitations,  doubtless,  as  in  selling  the- 
whole.^ 

Many  authorities,  recognizing  that  this  assertion  is  entirely  too 
broad,  have  stated  it  in  a  narrower  shape,  namely,  that  every  part- 
books,  even  as  agent  of  the  selling  v.  Clark,  1  Biss.  128,  136);  Graser  v. 
partner,  he  would  have  a  lien  on  Stellwagen,  25  N.  Y.  315;  Wetter  v. 
them  to  the  extent  of  his  outlays  Schlieper,  4  E.  D.  Smith,  707,  717; 
made  in  the  business  since  his  pur-  Willett  v.  Stringer,  17  Abb.  Pr.  153. 
chase.  See  High  v.  Lack,  Phil.  (N.  Ca.)  Eq. 

1  Lambert's  Case,  Godbolt,  244;  175;  McGregor  v.  Ellis,  2  Disney, 
Fox  V.  Hanbury,  Cowp.  445,  448;  286;  Deckard  v.  Case,  5  Watts,  22, 
Pearpoint  v.  Graham,  4  Wash.  C.  C.  24;  30  Am.  Dec.  287;  Dickinson  v. 
232 ;  Anderson  v.  Tompkins,  1  Brock.  Legare,  1  Desaus.  537 ;  Mygatt  v. 
456,  459;  Halstead  v.  Shepard,  23  Ala.  McClure,  1  Head,  495,  497;  Barcroft 
558,  573;  Hyrschfelder  v.  Keyser,  59  v.  Snodgrass,  1  Cold.  430.  444;  Will- 
id.  338;  Mills  v.  Barber,  4  Day,  428,  iams  v.  Roberts,  6  id.  493;  Lasell  v. 
430;  Drake  v.  Thyng,  37  Ark.  228;  Tucker,  5  Sneed,  33,  36 ;  Schneider  v. 
Mason  v.  Tipton,  4  Cal.  276;  Crites  Sansom,  62  Tex.  201;  50  Am.  Rep. 
V.  Wilkinson,  65  id.  559;  Williams  521;  Williams  v.  Sommerville,  8 
V.  Barnett,  10  Kan.  455;  Lamb  v.  Leigh,  415,  430;  Forkner  v.  Stuart,  6 
Durant,  12  Mass.  54,  56;  Montjoys  Gratt.  197;  Fox  u.  Rose,  10  Up.  Can. 
V.  Holden,  Litt.  Sel.  Cas.  447;  12  Am.  Q.  B.  16;  Paterson  v.  Maughan,  39 
Dec.  331 ;  Arnold  v.  Brown,  24  Pick.    id.  371. 

89;  35  Am.  Dec.  296;  Tapley  v.  But-  2  Osborne  v.  Barge,  29  Fed.  Rep. 
terfield,  1  Met.  515;  35  Am.  Dec.  725;  Wilcox  u  Jackson,  7  Colorado, 
374;  Kirby  v.  Ingersoll,  1  Doug.  521;  McCoy  v.  Boley,  21  Fla.  803; 
(Mich.) 477,  488  (aff.  s.  c.  Har.  Ch.  172)  Bull  v.  Harris,  18  B.  Mon.  195;  Tap- 
(see  Sirrine  v.  Briggs,  31  Mich.  443,  ley  v.  Butterfield,  1  Met.  515;  35  Am. 
444);  Whittou  v.  Smith,  1  Freem.  Dec.  874;  Holt  v.  Simmons,  16  Mo. 
(Miss.)  Ch.  231;  Cayton  v.  Hardy,  27  App.  97;  Willett  v.  Stringer,  17  Abb. 
Mo.  536;  Holt  v.  Simmons,  16  Mo.  Pr.  152;  Arnold  v.  Morris,  7  Daly, 
App.  97,  114;  Mabbett  v.  White,  12  498;  Paterson  v.  Maughan,  39  Up. 
N.  Y.  442  (explained  in  Pettee  v.  Can.  Q.  B.  371. 
Orser,  6  Bosw.  123,  137 ;  and  Bowen 

419 


§  40-t.  CONDUCT  OF  THE  BUSINESS. 

ner  has  tlie  power  to  sell  or  transfer  tlie  entire  personal  propert}', 
excluding  the  real  estate,  thus  seeming  to  put  a  generally  just  and 
proper  restriction  on  the  power  of  sale  upon  the  mistaken  ground 
of  the  nature  of  the  property  and  the  technical  rules  of  convey- 
ancing, which  require  a  deed  signed  by  each  partner  who  holds  the 
legal  title,  instead  of  on  the  ground  of  want  of  power  to  act  out- 
side of  the  scope  of  the  business.' 

Other  autliorities  have  sought  to  find  the  limit  to  the  general 
power  of  selling  in  the  doctrine  that  the  power  is  to  be  exercised 
in  subordination  to  the  joint  benefit.''  This  limitation,  in  so  far  as 
it  applies,  extends  to  sales  of  property  held  for  sale  where  the  gen- 
eral power  of  disposition  is  undisputed,  for  even  of  such  property 
a  conveyance  to  pay  a  private  debt  of  the  selling  partner,  or  with 
an  intent  to  defraud  the  other  partners  known  to  the  buyer,  is  not 
within  the  power;  but  the  limitation  as  above  expressed  would 
permit  the  sale  of  any  property  provided  it  be  for  joint  benefit,  and 
under  it  a  partner  could  transfer  property  held  for  continued  use 
to  pay  debts  or  to  raise  money  to  pay  debts,  without  the  assent  of 
his  copartners. 

§  404.  The  true  principle,  undoubtedly,  is  that  stated 
above  (§  401),  that  the  scope  of  the  business  gives  an  im- 
plied power  of  sale  only  of  the  property  held  for  the  pur- 
pose of  sale,  or  which  appears  to  the  buyer  to  be  such,  and 
that  property  owned  for  continued  use  cannot  be  sold  with- 
out express  authority  from  the  copartners.  The  following 
cases,  as  well  as  the  doctrine  against  the  power  to  assign 
for  benefit  of  creditors,  explain  and  enforce  this  doctrine. 

In  Sloan  v.  Moore,  37  Pa.  St.  217,  the  partnership  was  in  run- 
ning a  newspaper,  and  being  about  to  close,  or  having  already 
closed,  one  partner  sold  out  the  whole  concern.     It  was  ruled  that 

1  Barcroft  v.  Snodgrass,  1  Cold.  558,  573 ;  Williams  v.  Roberts,  6 
(Tenu.)430,  444;  Williams  v.  Roberts,  Cold.  493.  A  sale  of  the  whole,  being 
6  id.  493;  McCullough  v.  Sommer-  an  unusual  transaction,  may  excite 
ville,  8  Leigh.  415,  430;  Tapley  v.  suspicion  and  may  be  found  not  to 
Butterfield,  1  Met.  515,  519  (35  Am.  be  bo7ia  fide.  Stegall  v.  Coney,  49 
Dec.  374);  Goddard  v.  Reuner,  57  Miss.  761.  And  if  sold  at  half  prio«s, 
Ind.  533 ;  Keck  v.  Fisher,  58  Mo.  533,  notice  that  it  is  not  in  the  course  of 
535;  Weldu.  Peters,  1  La.  Ann.  433.  business  may  be  implied.     Walla.f"« 

2  Williams  v.  Barnett,  10  Kan.  455,  v.  Yeager,  4  Phila.  251. 
458;   Halstead  v.   Shepard,   23  Ala. 

420 


PARTICULAR  POWERS  BEFORE  DISSOLUTION.        §  404. 

where  a  partnership  is  formed  not  to  buy  or  sell,  but  for  a  business 
in  which  continued  ownership  is  indispensable,  neither  can  sell, 
even  to  pay  creditors,  and  an  injunction  was  allowed. 

In  Myers  v.  Moulton  (Cal.),  12  Pac.  Rep.  505,  it  was  held  that  a 
partner  had  no  power  to  sell  a  stallion  kept  for  breeding,  the  only 
property  of  the  firm,  because  it  was  not  merchandise. 

In  Cayton  v.  Hardy,  27  Mo.  536,  a  partner  in  a  farming  part- 
nership attempted  to  sell  a  yoke  of  working  oxen.  It  was  held 
that  this  was  not  within  the  scope  of  the  business,  which  did  not 
contemplate  such  sales,  and  that  the  sale  was  void.  The  court  said 
the  same  rule  would  apply  to  an  attempt  to  sell  the  farm,  the 
brood  mares  and  the  utensils. 

In  Drake  v.  Thyng,  37  Ark.  228,  one  partner  in  the  business  of 
making  brick,  in  the  temporary  absence  of  his  copartner,  sold  the 
whole  concern,  including  bricks  made  and  partly  made,  implements, 
lease,  fire-wood,  etc.,  the  buj'er  knowing  it  was  partnership  prop- 
erty. It  was  held  that  if  selling  is  in  the  scope  of  the  business 
one  partner  could  sell  part  or  all  of  the  efiiects  intended  for  sale, 
but  not  the  business  itself,  nor  the  effects,  including  the  means 
necessary  to  carry  it  on,  and  that  the  buyer  would  be  held  to  a 
strict  accountability  as  a  trustee  for  the  assets  of  the  firm  that  had 
come  to  his  hands,  and  the  sale  would  be  canceled. 

So  in  Grossman  v.  Shears,  3  Ont.  App.  583,  it  was  held  that  one 
of  the  partners  in  managing  a  hotel  could  not  sell  out  the  lease 
and  furniture,  and  that  the  other  was  not  estopped  by  having  re- 
mained passive.' 

In  Blaker  v.  Sands,  29  Kan.  551,  in  a  partnership  at  will  in  the 
increase  and  improvement  of  a  flock  of  sheep,  there  being  no  sales 
intended,  except  of  culls  of  the  flock,  it  was  said  that  one  partner 
had  no  power  of  sale  of  the  flock,  being  indispensable  to  the  firm, 
for  there  is  no  agency  in  one  partner  to  destroy  the  firm  b}''  strip- 
ping it  of  its  property,  and  the  sale  does  not  bind  the  copartner. 

In  Shellito  v.  Sampson,  61  loAva,  40,  the  question  was  raised 
whether  one  partner  can  bind  the  firm  by  an  agreement  to  rescind 
a  contract,  the  business  under  which  constitutes  the  whole  busi- 
ness of  the  firm,  and  a  rescission  of  which  would  work  a  practical 
dissolution. 

iSee,  also,  Goddard  v.  Renner.  57  brewery  could  not  sell  the  brewery 
Ind.  532,  holding  that  a  partner  in  a   lot. 

421 


§  405.  CONDUCT  OF  THE  BUSINESS. 

In  Ilunter  v.  Waynick,  67  Iowa,  555,  it  was  said  that  one  part- 
ner has  no  power  to  sell  the  entire  property  of  the  firm  where  the 
other  partner  lived  only  seventy-five  miles  away,  with  a  telegraph 
and  daily  mail  communication  between  the  towns. 

In  Hefiderson  v.  Nicholas,  67  CaL  152,  it  was  held  that  one  part- 
ner could  not  convey  the  interest  of  both  in  a  water  right  acquired 
by  them  by  appropriation. 

§  405.  The  power  to  sell  even  property  held  for  sale 
must  be  exercised  in  the  course  of  business;  hence  if  the 
dissent  of  the  copartner  in  a  firm  of  only  two  is  known  to 
the  buyer,  the  power  is  revoked;^  or  if  the  sale  or  transfer 
is  to  pay  the  private  debt  of  the  selling  partner,^  or  if  there 
is  fraudulent  collusion,  the  sale  is  void.^ 

Hence,  a  sale  of  the  whole  stock  by  a  single  partner  while 
abroad,  to  secure  a  creditor,  is  void  in  the  absence  of  assent  by  the 
copartners.*  A  sale,  in  order  to  break  the  firm,  has  been  held  void,* 
and  it  has  been  doubted  whether  a  partner  could  terminate  the 
partnership  by  a  sale  of  all  its  effects.* 

In  Arnold  v.  Brown,  24  Pick.  89  (35  Am.  Dec.  296),  the  firm's 
business  was  to  buy  goods  and  sell  them  at  retail;  one  partner  ab- 
sconded and  creditors  were  threatening,  and  the  remaining  partner 
sold  the  entire  stock  as  an  entirety  to  one  person.  The  court  said 
that  while  the  ordinary  business  of  the  firm  was  to  buy  in  large 
quantities  and  sell  in  small  quantities,  yet  this  could  not  restrain 
the  general  power  to  buy  and  sell;  that  the  authority  to  sell  will 
expand  or  contract  according  to  emergencies  that  may  arise;  thus, 
if  a  favorable  opportunity  occurred,  one  partner  could  sell  a  great 
part  or  the  whole  at  once,  and  here  an  exigency  had  arisen  which 
rendered  a  sale  highly  expedient,  and  the  sale  was  held  valid.' 

lSee§325.  feuse  was  want  of  insurable  inter- 

2§  410.  est,   one  partner  having  previously 

3  Hale  u.  Railroad,  60  N,    H.   333;   sold  out  the  insured  property. 

Edgar  v.    Donnally,   2  Munf.   (Va.)       *  Pearpoint  v.  Graham,  4  Wash.  C. 

387;  Fox  V.    Rose,    10  Up.    Can.    Q.    C.    232;  Osborne  v.   Barge,  29  Fed. 

B.  16.  Rep.  725.     See  Sirrine  v.   Briggs,  31 

*  Dickinson  v.   Legare,  1   Desaus.    Mich.  443,  444. 
537.  'And  see,  also,  as  to  absence  af- 

6 Kimball  v.  Hamilton  F.  Ins.  Co.  fectiug  autliority.  Lamb  v.  Durant, 
8Bosw.  495.  This  was  an  action  on  a  12  Mass.  54,  56  (7  Am.  Dec.  31) ;  Hun- 
fire  insurance  policy,  and  one  de-   ter  i'.  Waynick,  cited  in  the  previous 

423 


PARTICULAR  POWERS  BEFORE  DISSOLUTION.        §  40G. 

§  406.  Power  to  pledge  or  mortgage. —  The  power  to  bor- 
row and  the  power  to  pay  debts  both  imply  a  power  to 
pledge  or  give  a  mortgage  upon  the  property  of  the  firm 
■which  is  held  for  sale,  or  any  part  of  it,^  or  to  secure  future 
advances  of  merchandise,^  or  work  to  be  performed  upon 
the  articles  pledged  to  secure  payment  for  the  work,'  and 
for  this  purpose  may  assign  notes  and  claims,*  or  may  sell 
and  deliver  goods  to  a  creditor  in  payment.^ 

A  tender  by  one  partner  is  tender  by  the  firm,*  and  a  refusal  to 
pay  by  one  partner  on  demand  of  the  creditor,  though  the  firm 
had  previously  tendered  the  amount,  is  a  refusal  by  the  firm.' 

The  power  of  one  partner  to  make  a  chattel  mortgage  is 
the  same  as  a  power  to  pledge,  and  is  involved  in  the  power 
of  a  partner  to  sell  and  pay  debts,^  and  the  power  to  incum- 
ber the  entire  stock  is  involved  in  the  power  to  sell  the 
whole  stock. ^ 

eection ;  Forkner  v.  Stuart,  6  Gratt.  Mills  v.  Barber,  4  Day,  438 ;  Com- 
197.  For  the  remedy  of  the  injured  mercial  B'k  v.  Lewis,  13  Sm.  &  Mar. 
(partners,  see  §§  276,  1035-1048.  226 ;  McClelland  v.  Remsen,  36  Barb. 

1  Nelson  v.  Wheelock,  46  111.  25 ;  622;  14  Abb.  Pr.  331 ;  23  How.  Pr. 
Fromme  v.  Jones,  13  Iowa,  474;  Gal-  175;  3  Keyes,  454;  3  Abb.  App.  Dec. 
way  V.  FuUerton,  17   N.  J.  Eq.  389;    74. 

McGregor  v.  Ellis,  2  Disney,  286;  sscott  v.  Shipherd,  3  Vt.  104;  Bos- 
€uUum  V,  Bloodgood,  15  Ala.  34;  well  u.  Green,  25  N.  J.  L.  390;  Fork- 
Mills  V.  Barber,  4  Day,  428 ;  McClel-  ner  v.  Stuart,  6  Gratt.  197. 
land  V.  Remsen,  3  Keyes,  454 ;  3  Abb.  6  Douglas  v.  Patrick,  3  T.  R.  683. 
App.  Dec.  74;  30  Barb,  622;  23  How.  ^Peiise  v.  Bowles,  1  Stark.  323. 
Pr.  175;  14  Abb.  Pr.  331;  George  v.  » Gates  v.  Bennett,  33  Ark.  475; 
Tate,  102  U.  S.  564;  Milton  u  Mosher,  Wilcox  v.  Jackson,  7  Colorado,  521; 
7  Met.  244;  Roots  v.  Salt  Co.  27  W.  McCoy  u  Boley,  21  Fla.  803;  Fromme 
Va.  483,  493;  Tapley  V.  Butterfield,  1  v.  Jones,  13  Iowa,  474;  Nelson  v. 
Met.  515,  518(35  Am.  Dec.  374);  Holt  Wheelock,  46  111.  25;  Stockwell  V. 
V.  Simmons,  16  Mo.  App.  97;  Arnold  Dillingham,  50  Me.  442;  Tapley  v. 
V.  Morris,  7  Daly,  498.  And  see  Butterfield,  1  Met.  515 ;  35  Am.  Dec. 
Richardson  v.  Lester,  83  III.  55;  374;  Patch  v.  Wheatland,  8  Allen, 
Morse  v.  Richmond,  6  III.  App.  166  102;  Keck  u.  Fisher,  58  Mo.  532;  Holt 
(aff'd,  97  111.  303),  of  a  real  estate  v.  Simmons,  16  Mo.  App.  97;  Willett 
mortgage  to  secure  a  loan.  v.  Stringer,  17  Abb.  Pr.  152 ;  Roots  v. 

2Keegan   v.   Cox,    116  Mass.    289;   Salt  Co.  27  W.  Va.  483,  492. 
McGregor  v.  Ellis,  2  Disney,  286.  •  9  As    to    which,  see  §  403.     As  to 

sCarnesv.  White,  15  Gray,  378.  the    power     of    a     surviving    part- 

<Cullum  V.  Bloodgood,  15  Ala.  34;    ner,  see  below,  §  731.     The  power  of 

423 


§407. 


CONDUCT  OF  THE  BUSINESS. 


And  it  was  held  that  each  partner  could  mortgage  the- 
entire  personal  property  of  the  firm  as  security  for  debts, ^ 

§  407.  Execution  of  the  mortgage. —  Where  both  partners 
are  named  individually  as  mortgagors,  giving  also  the  firm  name,  a 
signature  in  the  firm  name  is  sufficient;  *  and  if  signed  in  the  firm 
name  the  acknowledgment  or  affidavit  of  one  partner  in  his  own 
name  is  sufficient/  Contra^  if  signed  by  the  individuals.*  That 
the  affidavit  may  be  by  such  partner  in  the  firm  name  Avas  held 
sufiBcient.*  The  mortgage  may  be  executed  by  the  partner  s  signing 
the  individual  names  of  all  the  copartners  instead  of  the  firm 
name.* 

As  a  chattel  mortgage  does  not  require  a  seal,  the  act  of  one  part- 
ner in  putting  on  a  seal  is  like  the  use  of  an  unnecessary  seal  on 
other  instruments  and  does  not  invalidate  it,  and  it  was  so  held.' 

The  mortgage  by  a  partner  in  his  own  name  passes  no  title  to 
the  property,^  and  as  a  mortgage  on  his  separate  interest  it  is  not 
a  mortgage  on  "  goods  and  chattels,"  and  filing  it  is  not  notice;  and 
it  only  covers  the  balance  due  the  mortgagor  after  paying  all  joint 
debts.*    But  while  a  mortgage  by  a  partner  of  his  interest  in  the 


all  the  partners  to  give  a  mortgage 
to  pay  the  debt  of  one  partner  in- 
volves the  question  of  fraudulent 
conveyances,  which  is  treated  in 
§  565. 

1  Reid  V.  Hollinshead,  4  B.  &  C. 
867;  Donald  v.  Hewitt,  33  Ala.  534, 
551 ;  Tapley  v.  Butterfield,  1  ]\Iet.  515 
(35  Am.  Dec.  374);  Clark  v.  Rives, 
33  Mo.  579,  582;  Willett  v.  Stringer, 
17  Abb.  Pr.  152.  Unless  the  lender 
knows  the  partner  will  appropriate 
the  avails  to  his  own  use.  Ex  parte 
Bonbonus,  8  Ves.  540.  For  a  similar 
power  in  surviving  partners,  see 
§  731.  And  see  Power  after  Dissolu- 
tion, §  686.  Contra,  if  it  practically 
terminates  the  business.  Osborne  v. 
Barge,  29  Fed.  Rep.  725.  And  see 
§  405.  Whether  one  partner  could 
pledge  the  property  of  the  firm  to 
secure  a  debt  due  to  another  firm,  in 
which  also  he  had  a  large  interest  as 


partner,  was  doubted  by  Snyder,  J., 
in  Roots  V.  Salt  Co.  27  W.  Va.  483^ 
493. 

2  McCoy  V.  Boley,  21  Fla.  803  •, 
Sloan  V.  Owens,  Lane  &  Dyer  Mach. 
Co.  70  Mo.  206. 

3  McCoy  V.  Boley,  21  Fla.  803.  See- 
Gibson  V.  Warden,  14  Wall.  244. 

4  Sanders  v.  Pepoon,  4  Pla.  405. 

5  Randall  v.  Baker,  20  N.  H.  335, 
Contra,  Sloan  v.  Owens,  Lane  & 
Dyer  Mach.  Co.  70  Mo.  206. 

6  Patch  V.  Wheatland,  8  Allen,  102; 
Tapley  v.  Butterfield,  1  Met.  515- 
(35  Am.  Dec.  374).     And  see  g  200. 

'Sweetzer  v.  Mead,  5  Mich.  107;. 
Milton  V.  Mosher,  7  Met.  244;  Tapley 
V.  Butterfield,  1  Met.  515  (35  Am. 
Dec.  374) ;  Woodruff  v.  King,  47  Wis. 
261.     And  see  g  418. 

8  Clark  V.  Houghton,  12  Gray,  38. 

9  Tarbel  v.  Bradley,  7  Abb.  New 
Cas.  273.     And  see  §  183. 


421 


PARTICULAR  POWERS  BEFORE  DISSOLUTION.        §  408. 

firm  to  his  separate  creditor  is,  as  against  the  claims  of  the  firm's 
creditors,  both  prior  and  subsequent,  and  of  copartners  for  their 
balances,  a  nullity,  3'et  any  surplus  coming  to  the  mortgagor  after 
satisfying  those  claims  will  be  appropriated  to  the  mortgagee  as 
against  other  separate  creditors  of  the  mortgagor  or  his  assignee 
in  bankruptcy  or  insolvency/ 

As  to  the  filing  of  chattel  mortgages,  see  §  179. 

§  408.  Power  over  contracts.-  —  Where  a  firm  filled  or- 
ders with  inferior  articles,  a  contract  hy  one  partner  to  take 
them  back  and  pay  for  them  is  within  the  scope  of  his 
powers.'  So  where  a  sale  was  with  warranty  of  soundness, 
if  the  article  prove  unsound  a  partner  can  take  it  back  and 
give  a  note  for  the  price  in  the  name  of  the  firm.* 

So  one  partner  may  extend  the  time  for  filling  a  contract 
with  the  firm. 

Thus  in  Leiden  v.  Lawrence,  2  New  Rep.  283  (Ex.),  Lawrence,  the 
inventor  of  an  ice  machine,  having  an  exclusive  grant  from  the  em- 
peror of  Brazil  to  use  it  there  for  ten  years,  contracted  with  the 
firm  of  Leiden  &  Rautenfeld,  in  consideration  'of  £3,300,  of  which 
£1,100  was  cash,  to  give  them  the  exclusive  right  of  using  it  in  the 
province  of  Rio  de  Janeiro,  and  contracted  to  make  a  machine  for 
them  by  the  end  of  January  following.  In  an  action  by  Leiden  to 
recover  back  the  cash  payment,  he  having  rescinded  the  agreement 
because  the  machine  was  not  ready  on  time,  proof  that  Rautenfeld 
had  extended  to, Lawrence  the  time  for  completing  it  was  held  a 
defense;  the  court  further  saying  that  one  partner  had  power  to 
exonerate  the  defendant  from  the  terras  of  the  contract.* 

But  where  the  contract  is  an  extraneous  liability  outside  of  the 
scope  of  the  business,  one  partner,  it  seems,  has  no  power  to  alter 
it;  for  example,  to  alter  a  note  made  by  non-trading  partners,  or 
to  consent  to  an  extension  of  time  where  the  firm  is  surety.* 

'  See  g  183.  of  its  patent  pavement  used,  it  is  not 

-  See,  also,  §  376.  in  the  scope  of  a  partner's  powers  to 

3  Wilson  V.  Elliott,  57  N.    H.   316.  vary  the  contract,  as  by  agreeing  to 

And  see  Torrey  v.  Baxter,  18  Vt.  452.  put  down  a  street  of  such  pavement 

<  Huguley  v.   Morris,  65  Ga.  666.  and  pay  the  royalty  himself.  Detroit 

5  See,    also,    Holton  v.  McPike,    27  v.  Robinson,  43  Mich.  198;  but  it  is 

Kan,  286,  noticed  under  g  391.     And  difficult  to  reconcile  this  case  with 

where  a  city  had  ag'reed  to  pay  to  a  Leiden  v.  Lawrence,  supra. 

firm  a  royalty  on  every  square  yard  ^  See  under  Bills  and  Notes,  §  341. 

435 


§  410.  CONDUCT  OF  THE  BUSINESS. 

§  409.  To  insure  or  protect  property. —  A  partner's  right 
to  p)rocure  insuraiace  on  the  entire  property,  unUke  that  of  a 
part  owner,  would  seem  to  be  clear  on  principle  as  well  as 
authority.  Insurance  is  so  general  a  precaution  that  the 
want  of  it  in  one  having  the  management  of  property  would 
be  deemed  an  imprudence.^ 

A  partner  can  give  notice  of  abandonment  for  the  firm,'  and  can 
consent  to  the  cancellation  of  a  policy  of  insurance  and  bind  his 
copartner  thereby,^  and  can  settle  a  loss;  ^  but  as  to  his  authority  to 
act  for  the  firm  under  the  arbitration  clause  of  a  policy.* 

§  410.  Use  of  assets  to  pay  separate  debts. —  From  the 
fact  that  a  partner's  power  of  disposition  is  confined  to  so 
doing  in  the  prosecution  of  the  business  of  the  firm,  and  for 
its  benefit,  as  well  as  from  the  fact  that  a  partner  has  no 
specific  ownership  in  any  chattel,  and  the  coj)artners  have 
an  equity  for  the  application  of  the  property  to  the  debts, 
and  adjustment  of  mutual  accounts,  it  follows  that  a  part- 
ner's'attempt,  without  the  assent  of  his  copartners,  to  use  an 
asset  of  the  firm  to  pay  his  separate  creditor,  is  a  fraud  on 
the  firm." 

A  partner  cannot  appropriate  assets  of  the  firm  without 

1  Hooper  v.  Lusby,  4  Camp.  66;  owns  the  mill  in  which  the  firm  con- 
Arraitage  v.  Winterbottom,  1  M.  &  ducted  its  business  of  milliug,  the 
G.  130;  per  Marshall,  C.  J.,  Graves  other  partner  has  no  power  to  bind 
v.  Boston  Mar,  Ins.  Co.  2  Cranch,  the  firm  for  the  expense  of  a  lightning 
419,  4o!);  Pennsylvania  Ins.  Co.  v.  rod  to  protect  the  mill,  for  this 
Murphy,  5  Minu.  36.  And  see  Clem-  power  is  not  necessary  to  carry  ou 
ent  V.  Biitish  Amer.  Assur.  Co.  141  the  business  in  the  ordinary  way, 
Mass.  298,  of  a  limited  partnei'ship;  and  a  note  for  it  is  not  good  against 
Robinson  v.  Gleadow,  2  Bing.  N.  the  other  partner.  Graves  v.  Kellen- 
Cas.  156,  where  there  was  evidence  berger,  51  Ind.  60. 

of  authority.  6  Cook  v.    Bloodgood,   7  Ala.  683; 

2  Hunt  V.  Royal  Exchange  Assur.  Fall  River  Un.  B"k  v.  Sturtevaut,  13 
Co.  5  M.  &  S.  47.  Cush.  372 ;  Chase  v.  Buhl  Iron  Works, 

3  Hillock  V.  Traders'  Ins.  Co.  54  55  Mich.  139;  Clark  v.  Sparhawk,  2 
Mich.  531.  AV.  N.  (Pa.)  115;  Vance  u  Campbell, 

*  Brown  v.  Hartford  F.  Ins.  Co.  8  Humpli.  524;  Converse  v.  McKee, 
117  Mass.  479;  Brink  v.  New  Amster-  14  Tex.  20.  And  see  §g  347-8,  383, 
dam  Ins.  Co.  5  Robt.  (N.  Y.)  104.  1035-1048. 

6  See  §  337.     Where    one   partner 

426 


PARTICULAR  POWERS  BEFORE  DISSOLUTIOIi.         §  410. 

his  copartner's  assent,  even  to  pay  a  debt  which  both  owe, 
individually,  and  not  as  partners.' 

Where  a  debtor  partner  has  not  delivered  assets  or  money 
of  the  firm,  in  payment  of  his  separate  debt,  but  has  merely 
promised  that  he  would  do  so,  his  creditor,  who  is  also 
debtor  to  the  firm,  cannot  insist  on  a  credit,  on  account 
of  such  promise,  when  sued  by  the  firm,'  or  credited  the 
amount.' 

If  the  fraudulent  transferee  of  partnership  property,  who 
received  it  from  one  partner  with  knowledge  of  his  want  of 
authority,  transfers  it  to  another  person,  who  has  notice  or 
gives  no  consideration,  the  latter  also  holds  in  trust  for  or 
subject  to  the  rights  of  the  firm.* 

In  Flanagan  v.  Alexander,  50  Mo.  50,  a  i3artner  told  his  private 
creditor  to  take  whisky  of  the  firm,  then  in  bond,  pay  the  tax  and 
sell  it  to  pay  his  individual  debt;  the  pledge  was  held  valid  to  the 
extent  that  the  creditor  paid  the  tax,  and  void  onlj-  as  to  the  bal- 
ance. 

In  Snyder  v.  Lunsford,  9  W.  Va.  223,  the  firm  owned  a  privilege  of 
purchase  of  real  estates;  one  partner  procured  the  deed  to  be  made 
to  his  private  creditor.  This  was  held  void  in  toto,  and  not  even 
good  for  a  partnership  debt  which  formed  part  of  the  consideration. 
But  see  the  cases  of  a  note  enforced  to  the  extent  of  a  valid  consid- 
eration, in  §  347. 

1  Hilliker  v.  Francisco,  65  Mo.  598.  claim  the  amount  from  both  of  the 
See,  also,  Johnson  v.  Hersey,  73  Me.  partners,  as  the  otlier  partner  could 
291.  not  gainsay  the  receipt,  but  would 

2  See  Pierce  v.  Pass,  1  Porter  (Ala. ),  have  a  remedy  against  his  partner, 
232;  Harlow  v.  Rosser,  28  Ga.  219;  or  any  remedies  the  client  would 
Price  V.  Hunt,  59  Mo.  258;  Armistead  have,  such  as  execution.  Cook  v. 
V.  Butler,  1  Hen.  &  M.  (Va.)  176.  Bloodgood,  7  Ala.  683,  688. 

'Minor  v.  Gaw,  11  Sm.  &  Mar.  323.        *  Croughton  v.  Forrest,  17  Mo.  131 : 

A  firm  of  attorneys  emjjloyed  to  col-  Forney  v.  Adams,  74  Mo.  138;  Vance 

lect  a  claim,  having  got  judgment  ou  v.    Campbell,    8   Humph.    o2i;    Fall 

it,  the  debtor  gave  up  to  the  sheriff  River  Un.    Bank  v.    Sturtevant,   12 

notes  he  held  against  one  of  the  firm,  Cush.  372,  holding  that  knowledge  of 

and  the  judgment  was  receipted  as  the  cashier  of  an  Indorsee   bank   is 

paid.     It  was  held  that  the  client  notice     to     the    bank.      See,     also, 

could  have  repudiated  such  payment  g§  544-546.    For  remedy,  see  §§  1035- 

and  had  the  receipt  vacated,  or  could  1048. 

427 


§  411.  CONDUCT  OF  THE  BUSINESS. 

§  •111.  Trading  out  debts. —  The  fact  that  the  creditor  of 
one  partner  is  induced  by  him  to  trade  out  the  debt  with 
the  firm,  or  take  out  the  debt  in  goods,  and  that  the  goods 
were  received  on  this  condition,  and  perhaps  would  not 
have  been  otherwise  purchased,  will  not  bind  the  non-assent- 
ing partner.^ 

A  person  can  make  a  purchase  from  a  firm,  under  a  con- 
temporaneous agreement  to  pay  in  some  other  currency  than 
money,  such  as  goods,  and  it  will  be  a  valid  contract,  pro- 
vided he  intends  the  articles  for  the  firm,  and  it  is  within 
the  apparent  scope  of  the  business  to  receive  them,  and  he 
does  not  know  of  a  design  on  the  part  of  the  partner  with 
whom  he  is  bargaining  to  accept  them  for  his  own  use.^ 

The  same  rule  against  appropriating  firm  assets  to  pay  private 
debts  applies  where  the  chief  feature  of  the  partnership  business  is 
the  labor  or  services  of  the  partners,  as  in  a  mechanical  or  profes- 
sional partnership.  Such  services  belong  to  the  firm,  and  an  agree- 
ment by  one  partner,  to  pay  his  private  debt  by  rendering  services, 
is  as  much  a  fraud  on  the  firm  as  if  he  had  appropriated  joint  prop- 
erty.* 

When  the  creditor  of  a  person  is  not  aware  of  the  partnership, 

1  Harper  v.    Wrigley,  48  Ga.  495 ;  may  be  explained  as  cases  of  pay- 

Todd  V.  Lorali,  75  Pa.  St.  155;  War-  ment  in  goods. 

der  V.    Newdigate,  11  B.  Mon.  174;       '^  Warder  u  Newdigate,  11  B  Mon. 

Cadwalladeru.  Kroesen.  22Md.  200;  174  (53  Am.    Dec.    567);  Lemon    v. 

Johnson  v.  Crichton,  56  id.  108,  112;  Fox.  21  Kan.  152,  159;  Hood  v.  Riley, 

McNair  v.  Piatt,  4(5  111.  211;  Broad-  15  N.  J.  L.   127;  Liberty  Sav.  Bank 

dus  V.  Evans,  63  N.  Ca.  633 ;  Liberty  v.  Campbell.  75  Va.  534.     The  above 

Savings  B'k  v.  Campbell,  75  Va.  534;  is  probably  the  true  reconciliation  df 

Ramey  v.  McBride,  4  Strob.  (S.  Ca.)  the   cases  cited,  and  yet  some  have 

L.  12.     Contra,  Tyler  u  Scott,  45  Vt.  gone  much  further.    Thus,  in  White 

261;  Strong    v.    Fish,     13    Vt.    277;  v.  Toles,  7   Ala.  569,  a  contract  witli 

Mitchell  V.   Sellman,   5  Md.  376,  but  one  partner  that  the  firm  should  do 

here  the  partner  had  been  authorized  work  for  the  party,  to  be  paid  for  by 

to  arrange  the  mode  of  payment  for  boarding    sucli     partner,    was    sus- 

the  new  purchases.  Arnold  v.  Brown,  tained.    See,  also,  Greeley  u.  Wyeth, 

24  Pick.  89   (35  Am.  Dec.  296),  (but  10  N.  H.  15, 

see  Williams  v.   Brimhall,  13  Gray,       3  Williams  v.   Brimhall,    13  Gray, 

463.)  Kirkpatrick  v.  TurnbuU,  Addi-  462;  Ramey  v.  McBride,  4  Strob.  (S. 

son  (Pa.),  259;  McKee  v.  Stroup,  Rice  Ca.)  L.  13. 
(S.  Ca.),  291,  but  the  three  last  cases 

428 


PARTIGULzVR  POWERS  BEFORE  DISSOLUTION.        §  412. 

and  emploj^s  the  services  of  the  partner  for  the  purpose  of  extin- 
guishing the  debt,  or  where  a  person  employs  a  partner,  not  being 
aware  of  his  partnership,  and  by  the  contract  is  to  pay  him  in  arti- 
cles, which  are  for  his  own  use  alone,  such  payment  is  a  good  dis- 
charge or  set-off,'  on  the  same  principle  that  allows  a  set-off 
against  the  ostensible  partner  in  a  dormant  partnership. 

§  412.  appropriation  of  payments. —  If  a  person  is 

creditor  of  the  firm  and  of  one  partner  also,  payments  by 
the  latter  with  partnership  funds  will  be  credited  on  the 
partnership  debt. 

Campbell  v.  Mathews,  6  Wend.  551,  where  a  partner  paid  a  judg- 
ment against  him  with  partnership  property,  and  the  creditor,  with 
the  consent  of  the  other  partner,  applied  the  payment  upon  the 
partnership  debt  and  issued  execution  on  the  judgment,  notwith- 
standing his  receipt  that  the  payment  was  applied  upon  the  judg- 
ment. 

Downing  v.  Linville,  3  Bush,  472,  where  a  surety  of  D.  &  W.  and 
of  W.  individually  received  partnership  funds  and  was  directed  by 
W.  to  apply  them  to  his  debt,  and  did  so,  but  having  afterwards 
paid  the  partnership  debts  with  his  own  money,  was  held  to  be 
deemed  to  have  paid  them  with  the  partnership  funds  which  he  had 
undertaken  to  credit  upon  W.'s  debt." 

And  the  same  principle,  as  far  as  possible,  will  be  applied 
where  the  firm  and  also  one  partner  are  creditors  of  the 
same  person. 

In  Eaton  v.  Whitcomb,  IT  Vt.  641,  W.  was  indebted  to  E.  &  S., 
and  S.,  having  authority  from  the  firm  to  trade  out  the  debt,  agreed 
that  W.  might  furnish  lumber  to  him  individually  in  payment.  W. 
furnished  himber  to  him  and  also  to  the  firm  and  overpaid  the  debt, 
and  it  was  held  that  his  delivery  to  the  firm  must  be  first  credited 
and  the  delivery  to  S.  next,  and  hence  the  overplus  after  discharg- 
ing the  debt  became  a  claim  against  S.  alone. 

Scott  V.  Trent,  1  Wash.  (Va.)  77,  where,  in  an  action  by  part- 
ners, the  defendant  put  in  set-off  receipts  signed  by  one  partner,  but 

1  Bryant  v.  Clifford,  27  Vt,  664;  2  See,  also,  Cornells  v.  Stanhope,  14 
McBain  v.  Austin,  16  Wis.  87 ;  Strong  R.  I.  97 ;  Davis  v.  Smith,  27  Minn. 
V.  Fish,  13  Vt.  277.  390. 

429 


§  413.  CONDUCT  OF  THE  BUSINESS. 

as  they  did  not  specify  the  payments  to  be  on  partnership  account, 
they  were  disallowed. 

Release,  power  to. —  See  Debts,  §  383;  Under  Seal,  §  415. 

SEALED  INSTRUMENTS. 

§  413.  A  partner  has  no  implied  power  to  bind  the  firm 
by  an  instrument  under  seal.  This  rule  is  universal.  It 
originated  in  the  doctrine  that,  if  he  could  do  so,  it  would 
enable  him  to  convey  the  real  estate  of  the  firm  or  create 
liens  upon  it  to  the  preference  of  favorite  creditors,  and  thus 
enlarge  partnership  functions  beyond  the  limits  of  chattel 
interests  and  personal  estate  and  the  course  of  trade.  The 
original  statement  of  the  rule  was  that  a  partner  could  not, 
unless  authorized,  bind  another  by  deed.  The  deeds  spoken 
of  undoubtedly  meant  such  as  reach  real  estate,  and  the  en- 
largement of  the  word  deed  to  include  any  specialty  was  a 
subsequent  interpretation  of  the  older  cases. 

These  reasons  are  not  sufficient  to  justify  the  rule,  because  the 
legal  title  of  real  estate,  if  in  the  name  of  more  than  one  partner, 
is  held  by  them  as  tenants  in  common,  and  a  tenant  in  common 
can  convey  only  his  own  share;  and  so  of  creating  liens  if  by 
mortgage;  and  if  by  confession  of  judgment,  it  is  only  necessary  to 
say  that,  at  common  hiAV,  no  seal  was  necessary  to  a  warrant  for 
such  purpose,  and  the  want  of  a  power  to  execute  such  an  instru- 
ment must  therefore  rest  on  other  grounds;  though  the  doctrine  is 
often  resorted  to  in  such  cases  as  the  foundation  of  the  court's 
opinion,  in  place  of  searching  for  the  truer  and  worthier  reason 
that  the  act  is  intrinsically  beyond  the  scope  of  the  partnership  re- 
lation, whether  sealed  or  unsealed.  And  if  the  limitation  on  the 
power  to  do  these  acts  is  not  based  on  a  better  reason,  the  curious 
result  will  follow  that  the  abolition  in  fourteen  of  our  states  of  all 
difference  between  sealed  and  unsealed  instruments  has  unavoidably 
enlarged  the  implied  powers  of  partners  already  quite  large  enough. 
A  more  substantial  reason,  though  seldom  referred  to,  is  that  the 
seal  imports  a  consideration,  and  to  that  extent  forestalls  inquiry. 
But  in  proportion  as  the  policy  of  the  courts  reduces  the  import 

430 


PARTICULAR  POWERS  BEFORE  DISSOLUTION.        §  414. 

of  a  seal  to  a  mere  prima  facie  presumption  of  consideration  this 
reason  fails.' 

§  414.  With  the  introduction  of  scrawl  seals,  the  doctrine  de- 
nying the  power  to  seal  becomes  still  more  technical  and  fallacious; 
and  where  the  reasons  for  the  rule  have  ceased  to  exist,  its  reten- 
tion is  a  mere  survival,  productive  of  no  advantage;  and  a  very 
cursory  examination  of  the  cases  Avill  convince  that  to  attribute 
such  magic  to  a  scrawl  has  more  frequently  defeated  than  promoted 
the  just  intent  of  the  parties,  has  led  to  frequent  injustice,  and  has 
been  a  snare  and  a  trap,  because  the  misstep  is  rarely  discovered 
until  the  instrument  is  placed  in  professional  hands  for  coercive 
proceedings. 

Although  the  rule  has  been  relaxed  so  as  to  let  in  releases  and 
to  permit  authorization  by  parol,  yet  the  rule  itself  everywhere 
remains,  excepting  only  as  influenced  by  the  entire  abolition  of 
seals  in  certain  states.* 

All  the  cases  cited  in  this  chapter  recognize  and  enunciate  the 
doctrine  that  a  partner  has  no  implied  power  to  bind  the  firm  un- 
der seal.' 

The  fact  that  the  articles  are  under  seal  gives  a  partner  no 
power  to  bind   the  firm  under  seal.*    The  question  is  not   as 

1  Where  the  statute  raises  notes  to  III.  3  111.  428,  442-4;  Henry  County 
the  dignity  of  sealed  instruments  it  v.  Gates,  26  Mo.  315,  317;  Montgom- 
does  not  limit  the  power  of  a  partner  ery  v.  Boone,  2  B.  Mon.  244;  StrafEn 
to  make  a  note.  Southard  v.  Steele,  v.  Newell,  T.  U.  P.  Charlton  (Ga.), 
3  Mon.  438;  Montgomery  v.  Boone,  3  163  (4  Am.  Dec.  705). 

B.  Mon.  244.  ^  In    addition    are    the    following 

2  Opinions  giving  reasons  for  sus-  cases  which  have  not  been  cited 
taining  the  rule  will  be  found  in  more  particularly:  Dodge  v.  McKay, 
Green  v.  Beals,  2  Caines,  254,  255;  4  Ala.  346;  Posey  u.  Bullitt,  1  Blackf. 
McBride  v.  Hagan,  1  Wend.  326,  334;  99;  Albers  v.  Wilkinson,  6  Gill  &  J. 
Fishery.  Tucker,  1  McCord  (S.  Ca.),  358;  People  v.  Judges  of  Duchess,  5 
Ch.  169;  McDonald  v.  Eggleston,  26  Cow.  34;  Anonymous,  2  Hayw.  (N. 
Vt.  154,  160  (60  Am.  Dec.  303);  Doe  Ca.)  99;  Anonymous.  Tayl.  (N.  Ca.) 
ex  dem.  Smith  v.  Tupper,  4  Sm.  &  113<  McKee  v.  Bank  of  Mt.  Pleasant, 
Mar.  261  (43  Am.  Dec.  483);  7  Oh.  2d  pt.  175;  Gerard  v.  Basse,  1 
McKnight  v.  Wilkins,  1  Mo.  308,  309.  Dall.  119;  Trimble  v.  Coons,  2  A.  K. 
Opinions  criticising  the  rule  will  be  Mar.  375 ;  McCart  v.  Lewis,  2  B. 
found  in  Gram  v.  Seton,  1  Hall,  262 ;  Mon.  267 ;  Nunnely  v.  Doherty,  1 
Drumright  v.  Philpot,  16  Ga.  424  (60  Yerg.  (Tenn.)  26,  30. 

Am.  Dec.  788) ;  Gwinn  v.  Rooker,  24       *  Harrison  v.  Jackson,  7  T.  R.  207. 
Mo.  290,  292 ;  Sloo  v.  State  Bank  of 

431 


§  416.  CONDUCT  OF  THE  BUSINESS. 

to  the  form  in  which  the  power  is  created,  but  whether  it  exists 
at  all. 

§  415.  Release  under  seal. —  A  well  settled  limitation  on 
the  denial  of  the  right  to  execute  a  sealed  instrumenb  was 
early  established  and  ever  since  maintained,  namely,  a  part- 
ner may  execute  a  release  under  seal.^  The  ground  of  this 
is  that  the  release  creates  no  obligation,  and  imposes  no 
fresh  burthen,  for  it  only  bars  a  right  of  action,  and  results 
merely  from  the  right  to  collect  debts. 

§  41tj.  Parol  authority  or  assent. —  If  the  specialty  is  ex- 
ecuted by  one  partner  in  the  presence  of  the  rest,  signing 
their  names  by  their  direction,  it  is  their  act,  and  all  are 
bound. ^  But  in  England,  and  in  a  few  American  cases,  it 
is  held  that  the  authority  to  bind  a  partner  not  present  by 
seal  must  be  conferred  by  a  sealed  instrument,  and  that  an 
authority  or  ratification  by  parol  was  not  sufficient.^  But 
there  has  been  a  steady  and  progressive  relaxation  of  this 

iHockless  V.  Mitchell,  4  Esp.  80;    partner  could  release  a  debtor  under 
Hawkshaw    v.    Parkins,   2  Swanst.    seal  he  could  delegate  this  power  by 
539;  Halsey  v.   Whitney,  4  Mason,    executing  a  power  of  attorney  under 
206,  231;  United   States  v.  Astley,  3   seal  to  discharge  the  debt. 
Wash.  C.  C.  508;  McLane  v.  Sharpe,       2  Ball  v.  Dunsterville,  4  T.  R.  813; 
2  Harr.  (Del.)  481 ;  Morse  v.  Bellows,    Burn  v.  Burn,  3  Ves.  578. 
7  N.  H.  549  (28  Am.  Dec.  372);  Smith       3  Steiglitz  v.  Egginton,  Holt,  N.  P. 
V.  Stone,  4  Gill  &  J.  310 ;  Allen  v.    141 ;  Harrison  v.  Jackson,  7  T.  R.  207 ; 
Cheever,    61    N.    H.  32;    Pierson    v.    Cummins  v.  Cassily,  5  B.   Mon.  74; 
Hooker,    3    Johns.  68    (3    Am.  Dec.    Doe  v.  Tupper,  12  Miss.  261 ;  Bentzen 
467);  Bruen  v.  Marquand,  17  Johns,    v.  Zierlein,  4  Mo.  417;  Turbeville  v. 
58 ;  Wells  v.  Evans,  20  Wend,  251  (re-    Ryan,  1  Humph.  113,  120  (34  Am.  Dec. 
versed  in  part  in  Evans  v.  Wells,  22    622);  Little  v.  Hazzard,  5  Harr.  (Del.) 
Wend.    324);  Beach  v.    Ollendorf,  1    291;     Sellers    v.   Streater,    5    Jones, 
Hilt.  41 ;  Perlberg  v.  Gorham,  10  Cal.    L.    261 ;    Fisher    v.    Pender,    7    id. 
120;  Gates  v.   Pollock,  5  Jones   (N.    483;    Tappan    v.    Redfield,   1    Halst. 
Ca.),L.  SU;  and  dicta  in  Fox  V.  Nor-   (N.   J.)  Ch.  339;    Trimble  v.  Coons, 
ton,  9  Mich.    207,    208 ;  McBride  v.    2  A.  K.   Mar.  375.     And  if  granted 
Hagan,  1    Wend.  326,   334.     But  see    in     articles    of    partnership,    under 
Waldo  Bank  u  Lumbert,  16  Me.  416,    seal,  the  dissolution  revokes  it,  and 
419.     In  Wells  v.  Evans,  20  Wend,    a  renewal  of  the  firm,  in  order  to 
251    (reversed    on    other    points    in    wind  up,  does  not  revive  the  power. 
Evans  v.  Wells,  22  id.    324;  Lockw.    Napier  v.  Catron,  2  Humph.  534. 
Rev.  Cas.  390),  it  was  held  that  as  a 

482 


PARTICULAR  POWERS  BEFORE  DISSOLUTION.        §  416. 


rule,  and  several  of  the  above  decisions  are  inconsistent  with 
later  cases  in  the  same  states;  and  it  is  now  virtually  a  uni- 
versal American  doctrine,  that  the  prior  assent  or  subsequent 
ratification  may  be  by  parol,  and  may  be  implied  froro 
declarations  or  from  circumstances,  as  being  present  at  the 
execution  without  objection,  or  knowingly  acting  under  and 
receiving  the  benefits  of  the  transaction.^ 

The  ratification  may  be  after  dissolution,  and  no  more  express 
acts  are  necessary  than  before.'*  The  assent  or  ratification  need  not 
be  simultaneous  by  all,  but  may  be  by  one  at  one  time,  and  another 
at  another.^ 


1  Gibson  v.  Warden,  14  Wall.  244; 
Anthony  v.  Butler.  13  Pet.  423; 
United  States  v.  Astley,  3  Wash.  C. 
C.  508;  Darst  v.  Roth,  4  Wash.  C.  C. 
471 ;  Hawkins  v,  Hastings  Bank,  1 
Dill.  462 ;  4  Bankr.  Reg.  108 ;  Re  Law- 
rence, 5  Fed.  Rep.  349 ;  Henderson 
V.  Barbee,  2  Blatchf.  26;  Herbert  v. 
Hanrich,  16  Via.  581;  Grady  v.  Rob- 
inson, 28  Ala.  289;  Gunter  v. 
Williams,  40  Ala.  561 ;  Lee  v.  Onstott, 
1  Ark.  206 ;  Hobson  v.  Porter,  2  Col- 
orado, 28;  Jeffreys  v.  Coleman,  20 
Fla.  536;  Drumriglit  v.  Philpot,  16 
Ga.  424  (60  Am.  Dec.  738) ;  Sutlive  v. 
Jones,  61  id,  676;  Peine  v.  Weber, 
47  111.  41 ;  Wilcox  v.  Dodge,  12  111. 
App.  517;  Modisett  v.  Linclley,  2 
Blackf.  119;  Price  v.  Alexander,  2  G. 
Greene  (Iowa),  427  (52  Am.  Dec.  526) ; 
Haynes  v.  Seachrest,  13  Iowa,  455; 
Craig  V.  Alverson,  6  J.  J.  Mar.  (Ky.) 
609:  Daniel  v.  Toney,  2  Met.  (Ky.) 
523 ;  McCart  v.  Lewis,  2  B.  Mon.  267 ; 
Pike  V.  Bacon,  21  Me.  280  (38  Am. 
Dec.  259) ;  Herzog  v.  Sawyer,  61  Md. 
344 ;  Cady  v.  Shepherd,  1 1  Pick.  400 
(22  Am.  Dec.  379);  Swan  v.  Stedman, 
4  Met.  548;  Russell  v.  Annable,  109 
Mass.  72;  Holbrook  v,  Chamberlin, 
116  id.  155;  Sweetzer  v.  Mead,  5 
Mich.  107;  Fox  v.  Norton,  9  id.  207; 
Shirley    v.    Fearne,     33    Miss.    653; 


Gwinn  v.  Rooker.  24  Mo.  290 ;  Mackay 
V.  Bloodgood,  9  Jolms.  2S5 ;  Skinner 
i\  Dayton.  19  id.  513;  Gates  v.  Gra- 
ham, 12  Wend.  53;  Gram  i\  Seton, 
1  Hall,  262;  Pettis  v.  Bloomer,  21 
How.  Pr.  317;  Smith  v.  Kerr,  3  N.  Y. 
144;  Person  v.  Carter,  3  Murph.  (N. 
Ca.)  321;  Fichthorn  v.  Boyer,  5 
Watts.  159;  Purviance  v.  Suther- 
land, 2  Oh.  St.  478;  Bond  v.  Aitkin, 
6  Watts  &  S.  165  (40  Am.  Dec.  550) 
Taylor  v.  Coryell,  12  S.  &  R.  243,  249 
Johns  V.  Battin,  30  Pa.  St.  84 
Schmertz  v.  Shreeve,  62  Pa.  St.  457 
(1  Am,  Rep.  439);  Fleming  v.  Dun- 
bar, 2  Hill  (S.  Ca.),  L.  532;  Lucas  v. 
Sanders,  1  McMull.  311 ;  Fant  y.  West, 
10  Rich.  L.  149;  Stroman  v.  Varn,  19 
S.  Ca.  307;  Lambden  v.  Sharp,  9 
Humph.  224(34  Am.  Dec.  642);  Low- 
ery  v.  Drew,  18  Tex.  786,  792 ;  Bald- 
win V.  Richardson,  33  Tex.  16; 
McDonald  v.  Eggleston,  26  Vt.  154. 
161  (60  Am.  Dec.  303):  Black  v. 
Campbell,  6  W.  Va.  51;  Wilson  v. 
Hunter,  14  Wis.  683;  Modr  v.  Boyd, 
15  Up.  Can.  C.  P.  513;  Bloomley  r. 
Grinton,  9  Up.  Can.  Q.  B.  455;  Howell 
V.  McFarland,  2  Out.  App.  31. 

2  Swan      V.  Stedman,  4  Met.  548; 
Gwinn  u  Rooker,  21  Mo.  290. 

3  Sweetzer  v.  Mead,  5  Mich.   107, 
110. 


Vol.  I  —  28 


433 


j5  4i; 


CONDUCT  OF  THE  BUSINESS. 


§  417.  Assent  as  to  conyeyances  of  real  estate. —  The  title 
and  the  conveyance  of  real  estate  constitute  an  independent 
branch  of  law.  The  title  must  stand  in  the  name  of  an 
actual,  whether  real  or  fictitious,  and  not  a  conventional 
person,  as  a  partnership  is,  and  therefore  cannot  be  held  in 
the  firm  name.  The  partners  who  hold  the  title  hold  it  as 
tenants  in  common  in  law,  and  partnership  rights  affect 
only  the  beneficial  interest  recognizable  in  equity. 

So,  too,  conveyances  of  real  estate  are  governed  by  the 
law  of  conveyancing  and  not  by  the  principles  of  partner- 
ship law.  This  is  treated  of  in  the  chapter  on  real  estate, 
and  is  mentioned  here  lest  the  foregoing  doctrine  be  pushed 
too  far,  for  it  must  not  be  thought  that  a  parol  ratification 
of  or  authority  for  an  act  done  in  the  firm  name  can  be  a 
substitute  for  a  deed  of  real  estate.^ 

^  §  293.  Nevertheless,  in  Robinson  executed  in  its  name  by  one  partner, 
V.  Crowder,  4  McCord  (S.  Ca.),  L.  whei'e  all  went  into  possession,  was 
519,  536-7  (17  Am.  Dec.  7G3),  it  was  thereby  ratified.  And  real  estate 
said  that  if  the  business  of  the  firm  mortgages  executed  in  the  firm  name 
was  dealing  in  lands  as  a  commod-  by  one  partner  were  held  validated 
ity,  one  partner  might  bind  the  firm  by  parol  assent  or  ratification  in  Gun- 
by  a  transfer;  but  the  question  was  ter  v.  Williams,  40  Ala.  561;  and 
rather  of  scope  of  authority  than  of  see  Stroman  v.  Varn,  19  S.  Ca.  307; 
form.  And  in  Haynes  u.  Seachrest,  Anthony  v.  Butler,  13  Pet.  423; 
13  Iowa,  455, and  Herberts.  Hanrick,  Holdeman  v.  Knight,  Dallam  (Tex.), 
16  Ala.  581,  parol  ratification  was  55(5.  But  these  cases  do  not  impugn 
held  to  make  a  deed  good  against  the  general  rule  that  conveyances  of 
the  partners;  and  in  Grady  v.  Rob-  real  estate,  in  the  absence  of  statu- 
inson,  28  Ala.  289,  that  a  sealed  tory  provision,  must  be  in  the  name 
contract  to  sell  lands  could  be  rati-  of  all  of  the  partners,  whether  signed 
fied  or  authorized  by  parol;  and  in  by  each  for  himself  or  by  procura- 
Baldwin  v.  Richardson,  33  Tex.  16,  tion  and  not  in  the  firm  name,  except 
that  the  parol  assent  created  an  that  in  some  states  leases  for  short 
equity  enforcible  against  the  part-  terms,  given  in  a  firm  name,  have 
ners.  In  Dillon  v.  Brown,  11  Gray,  been  recognized  by  the  courts.  A 
179,  it  was  held  that  one  partner  real  estate  conveyance  purporting  to 
could  not  give  a  lease,  but  that  all  be  of  the  property  of  two  partners, 
must  sign;  but  in  Peine  v.  Weber,  but  executed  by  one  only,  was  held 
47  III.  41,  and  Smith  v.  Kerr,  3  N.  Y.  validated  by  tlie  acknowledgment  of 
144,  the  contrary  was  held ;  and  in  the  other  before  a  notary  that  his 
Holbrook  v.  Chamberlin,  116  Mass.  partner  was  authorized,  Holdeman 
155,  and  Kyle  v.  Roberts,  6  Leigh  v.  Knight,  Dallam  (Tex.),  556.  And 
(Va.),  495,  that   a  lease    to    a   firm  where  one  partner  executed  the  con- 

434 


PARTICULAR  POWERS  BEFORE  DISSOLUTION. 


§41B. 


§  418.  Unnecessary  seal  as  surplusage. —  Where  the  act 
is  in  the  ordinary  scope  of  the  partnership  business,  that  is, 
does  not  require  a  seal,  the  mere  addition  of  the  seal  is 
held  in  many  cases  not  to  vitiate  the  contract,  except  in  a 
state,  as  Pennsylvania,  where  a  different  statute  of  limita- 
tions applies  to  a  contract  under  seal,  in  which  case  the  nat- 
ure of  the  contract  is  changed;  but  if  not  changed  in  its 
nature  the  act  is  still  a  partnership  act.^ 

Au  executed  contract,  such  as  a  bill  of  sale  accompanied  by  de- 
livery, stands  on  a  different  ground,  f©r  the  delivery  consummates 
the  transaction  and  the  instrument  is  the  mere  evidence  of  it,  and 
a  seal  added  does  not  affect  the  title." 


veyance  in  the  firm  name,  and  the 
official  acknowledgment  was  by  him 
as  his  free  act  and  deed  on  behalf  of 
the  firm,  this  was  held  valid  on  evi- 
dence of  authority  by  the  copartners. 
Wilson  V.  Hunter,  14  Wis.  744.  Con- 
tra, Lemmon  v.  Hutchins,  1  Ohio 
Cir.  Ct.  388,  391. 

1  Hunter  v.  Parker,  7  M.  &  W.  822 ; 
Gibson  v.  Warden,  14  Wall.  244 ;  An- 
derson V.  Tompkins,  1  Brock.  456; 
Hawkins  v.  Hastings  Bank,  1  Dillon, 
462;  4  Bankr.  Reg.  108;  Drumright 
V.  Philpot,  16  Ga.  424  (60  Am.  Dec. 
738);  Walsh  v.  Lennon,  98  III.  27  (38 
Am.  Rep.  75) ;  Price  v.  Alexander,  2 
G.  Greene  (Iowa),  427  (53  Am.  Dec. 
526);  Van  Deusen  v.  Blum,  18  Pick. 
229  (29  Am.  Dec.  582) ;  Tapley  v.  But- 
terfield,  1  Met.  515  (35  Am.  Dec.  374, 
achattel  mortgage);  Milton  v.  Mosher, 
7  id.  244  (a  chattel  mortgage) ;  Sweet- 
zer  V.  Mead,  5  Mich.  107  (a  chattel 
mortgage);  Moore  v.  Stevens,  60 
Miss.  809,  815;  Henry  County  v. 
Gates,  26  Mo.  315,  317;  Human  v. 
Cuniffe,  32  Mo.  316;  Despatch  Line 
V.  Bellamy  Man.  Co.  12  N.  H.  205, 
235  (a  corporation);  Purviance  v. 
Sutherland,  2  Oh.  St.  478 ;  Patten  v. 
Kavanagh,  11  Daly,  348;  Everit  v. 
Strong,  5  Hill,  163  (aff'd,  7   id.   585); 


Deckard  v.  Case,  5  Watts,  22  (30  Am. 
Dec.  287) ;  Dubois'  Appeal,  88  Pa.  St. 
231;  Schmertz  v.  Shreeve,  62  Pa. 
St.  457  (1  Am.  Rep.  439);  Robinson 
V.  Crowder,  4  McCord,  519  (17  Am. 
Dec.  762);  Lasell  v.  Tucker,  5  Sneed 
(Tenn.),  33. (a  bill  of  sale);  McDon- 
ald V,  Eggleston,  26  Vt.  154  (60  Am. 
Dec.  303);  McCullough  v.  Sommer- 
ville,  8  Leigh,  415;  Woodruff  v. 
King,  47  Wis.  261  (a  chattel  mort- 
gage); Bloomley  v.  Grinton,  9  Up. 
Can.  Q.  B.  455.  See,  also,  article  in 
9  Am.  Law  Reg.  N.  S.  264,  May, 
1870.  That  the  seal  will  be  regarded 
as  added  by  mistake  where  it  is  un- 
necessary and  was  intended  to  bind 
the  firm,  Wharton  v.  Woodburn,  4 
Dev.  &  Bat.  L.  507;  Purviance  v. 
Sutherland,  2  Oh.  St.  478.  In  Dillon 
V.  Brown,  11  Gray,  179,  a  sealed  lease 
by  one  partner  in  the  name  of  the 
firm  for  a  short  term,  for  which  no 
seal  is  required,  was  held  not  to  pass 
the  estate  of  the  other  partners ;  but 
this  was  because  of  the  law  govern- 
ing real  estate,  as  to  which  the  part- 
ners are  tenants  in  common,  and 
therefore  all  must  have  signed  or  as- 
sented even  had  there  been  no  seal. 
2  Schmertz  v.  Shreeve,  62  Pa.  St, 
457,  460  (1  Am.  Rep.  439) ;  Deckard 


435 


§420.  CONDUCT  OF  THE  BUSINESS. 

So  in  states  where  all  distinctions  between  sealed  and  unsealed 
instruments  are  abolished,  a  contract  by  one  partner  under  seal  is 
valid.' 

§  41 9.  A  single  seal  for  all. —  Where  an  authorized  sealed 
instrument  is  made  in  the  firm  name  there  is  rarely  more 
than  one  seal  affixed.  But  it  is  of  importance  in  aver- 
ring upon  such  an  instrument  to  note  the  exact  meaning 
of  this  seal.  A  firm  has  no  common  seal;  and  while  the 
single  seal  is  perfectly  valid,  it  is  so,  not  as  the  seal  of  the 
firm,  but  of  each  member,  the  partners  having  adopted  the 
same  seal.  Hence  it  must  not  be  averred  that  the  firm 
sealed  with  their  seal,  for  the  firm  has  none;  but  that  the 
partners  in  the  firm  name  sealed. - 

§  420.  Merger. —  It  has  been  said  by  very  high  authority 
that  a  sealed  note  executed  in  the  firm  name  by  one  partner 
extinguished  the  original  debt  as  to  all,  by  merging  it  in  the 
higher  security.' 

V.  Case,  5  Watts,  23  (30  Am.   Dec.       2  That  a  single  seal  is  sufficient  ia 

287);  Dubois'  Appeal,  38  Pa.  St.  231 ;  expressly    ruled    in    the    following 

Everit  v.  Strong,  5  Hill,    163;  7  id.  cases:  Ball  v.  Dunsterville,  4  T.  R. 

585:  Forkner  r.  Stuart,  6  Gratt.  197;  313;  Henderson  v.  Barbee,  6  Blatch. 

McClelland  v.  Remsen,  3  Keyes,  454;  26;  Lee  v.  Onstott,  1  Ark.  206;  Day  v. 

3  Abb.  App.  Dec.  74;  36  Barb.  22;  Lafferty,  4  id.  450;  Massey  u.  Pike,  20 

23   How.  Pr.    175 ;  14  Abb.   Pr.  331 ;  id.  92 ;  Witter  v.  McNeil,  4  111.  433, 

Andersons.  Tompkins,  1  Brock.  456;  436-7;  Modisett  v.  Lindley,  2  Blackf. 

Hennessy  v.  Western  Bank,  6  Watts  119;  Price  v.  Alexander,  2  G.  Greene 

&  S.  300  (40  Am.  Dec.  560);  Moore  v.  (Iowa),  427;  52  Am.  Dec.  526;  Pike  v. 

Stevens,  60   Miss.  809,  815;  Petition  Bacon,  21  Me.  2S0;  38  Am.  Dec.  259 

of  Daniels,  14  R.  I.  500.     In  McDon-  McKnight    v.   Wilkins,    1    Mo.    220 

aid  V.  Eggleston,  26  Vt.  154,  159-60  (60  Mackay  v.  Bloodgood,  9  Johns.  285 

Am.  Dec.  303),  it  is  intimated,  but  I  Pettis  v.  Bloomer,  21  How.  Pr.  317 

believe  erroneously,  that  disregard-  Buttons.  Hampson,  Wright  (O.),  93 

ing  an  unnecessary  seal  is  confined  Lambden  v.  Sharp,  9  Humph.  224 

to  transactions  that  transfer  an  in-  34  Am.  Dec.  642;  Moor  v.  Boyd,  15 

terest,   and  does  not  apply   to  one  Up.  Can.  C.  P.  513  (but  the  ruling 

creating  an  obligation.  was  doubted  in  Moor  v.  Boyd,  23 Up. 

1  Pearson  v.   Post,  2  Dakota,   220,  Can.  Q.  B.  459).     And  see  cases  gen- 

248.     Seals  have   been  abolished  in  erally  under  §  416. 
Arkansas,     California,     Dakota,       '  Morris  ?'.  Jones,  4   Harr.   (Del.) 

Indiana,  Iowa,  Kansas,  Kentucky,  423;  Williams  v.  Hodgson,  2  Har.  «fe 

Mississippi,    Montana,    Nebraska,  J.  (Md.)  474;  Davidson  v.  Kelly,  1 

Ohio,  Oregon,  Tennessee,  Texas.  Md.  492;  Settle  v.  Davidson,  7  Mo. 

436 


PARTICULAR  POWERS  BEFORE  DISSOLUTION.        §  4'iO. 

But  the  point  was  not  necessary  to  be  decided  in  any  one  of  these 
cases.  It  might  be  more  reasonable  to  urge  that  the  instrument 
being  made  and  taken  as  binding  all,  and  failing  in  its  design, 
binds  no  one,  not  even  the  signer,  who  would  be  held  only  on  an 
implied  warranty  that  he  was  authorized.  It  does,  however,  bind 
the  signer,  as  is  shown  by  the  authorities  cited  in  the  next  section. 

But  by  the  overwhelming  weight  of  authority  and  reason 
such  unauthorized  sealed  instrument  in  the  firm  name  does 
not  merge  the  debt  as  against  the  other  partners,  for  the 
creditor  did  not  intend  to  release,  but  to  bind  them.^ 

If,  however,  the  sealed  obhgation  of  one  partner  is  in  his 

604;  Gwinn  v.  Rooker,  24  id.  291;  12  N.  H.  205,235.  And  in  Walsh  v. 
Clement  v.  Brush,  3  Johns.  Cas.  180;  Lennon,  98  111.  27;  Daniel  v.  Toney, 
Skinner  v.  Dayton,  19  Johns.  513,  2  Met.  (Ky.)  523;  Van  Deusen  v. 
531 ;  Spear  v.  GiUet,  1  Dev.  (N.  Ca.)  Biura,  18  Pick.  229;  29  Am.  Dec.  582; 
Eq.  466;  Bond  v.  Aitkin,  6  W.  &  S.  and  Despatch  Line  v.  Bellamy  Man. 
165;  Harris  v.,  Miller,  Meigs  (Tenn.),  Co.  12  N.  H.  205,  235,  it  was  held  not 
158;  33  Am.  Dec.  138;  Nunnely  r.  even  to  be  a  merger  as  to  the  signing 
Doherty,  1  Yerg.  26 ;  Waugh  v.  Car-  partner,  and  that  all  the  partnei-s 
riger,  id.  31.  That  it  is  presumed  could  be  sued  on  the  original  consid- 
to  be  intended  to  merge  the  debt,  eration  as  on  an  implied  contract. 
McNaughten  v.  Partridge,  11  Oh.  In  Doniphan  v.  Gill,  1  B.  Mon.  199, 
223,  232;  38  Am.  Dec.  731.  it  was  held  that  a  plea  of  non  est 
1  Walsh  V.  Lennon,  98  111.  27 ;  factum  to  an  action  on  the  sealed 
Daniel  v.  Toney,  2  Met.  (Ky.)  523;  note  was  an  estoppel  to  claim  a 
Doniphan  v.  Gill,  1  B.  Mon.  199;  Van  merger  in  an  action  on  the  original 
Deusen  V.  Blum.  18  Pick.  229;  29  Am.  debt.  In  Van  Deusen  v.  Blum,  18 
Dec.  582;  Despatch  Line  v.  Bellamy,  Pick.  229,  231  (29  Am.  Dec.  582), 
12  N.  H.  205,  235;  Walden  v.  Sher-  wliere  the  unauthorized  seal  was 
burne,  15  Johns.  409;  Blanchard  v.  upon  a  contract  to  build  a  dam  for 
Pasteur,  2  Hay  w.  (N.  Ca.)  393;  Spear  the  firm,  for  a  purpose  within  the 
V.  Gillet,  1  Dev.  Eq.  466,  if  the  con-  scope  of  the  business,  it  was  said  that 
tract  is  joint  and  several,  but  not  the  firm,  having  received  a  benefit, 
otherwise;  Hortonu.  Child,  4 Dev.  L.  was  liable  on  an  implied  promise  to 
4.30;  Purviance  v.  Sutherland,  2  Oh.  pay;  that  the  express  contract  does 
St.  478;  Hoskissonv.  Eliot,  62  Pa.  St.  not  exclude  the  implied  one  that  the 
393;  Fleming  v.  Lavvthorn,  Dudley  plaintiff  is  not  bound  to  rely  on  his 
(S.  Ca.),  L.  300;  Pierce  u  Cameron,  7  remedy  against  the  executory  part- 
Rich.  L.  114;  Pelzer  v.  Campbell,  15  ner  alone;  that  as  there  was  no  con- 
S.  Ca.  583;  Sale  v.  Dishman,  3  Leigh  tract  binding  on  the  firm  in  exist- 
(Va. ),  548.  And  see  Froneberger  v.  ence,  the  services  were  not  rendered 
Henry,  6  Jones,  L.  (N.  Ca.),  348,  and  in  performance  of  the  contract. 
Despatch  Line  v.  Bellamy  Man.  Co. 

437 


§  421.  CONDUCT  OF  THE  BUSINESS. 

own  name,  it  extinguishes  the  simple  contract  debt  of  the 
firm  in  the  higher  security  and  makes  it  his  separate  debt.' 

But  if  the  debt  be  a  judgment,  the  bond  is  no  higher  security, 
and  therefore  may  or  may  not  be  a  satisfaction,  for  it  may  be  merely 
collateral,  and  evidence  is  necessary  to  show  which.* 

A  sealed  note,  made  by  the  ostensible  partner  in  his  own  name, 
the  firm  having  no  other  name,  does  not  merge  the  original  cause 
of  action  against  the  secret  partner,  for  if  it  did,  the  latter  could 
always  escape  liability.^ 

§421.  The  executing  partner  is  bound.— The  partner 
who  has  executed  an  instrument  in  the  firm  name  under 
seal  without  authority,  although  the  firm  is  not  bound  by 
it,  is  himself  bound.* 

The  instrument  must  be  averred  to  be  the  bond  of  the  individual 
partner,  and  it  is  improper  to  declare  on  it  as  the  joint  covenant 
of  all,'  for  it  is  not  that;  and  so  if  executed  in  the  name  of  such 

1  United  States  v.  Astley,  3  Wash.  344 ;  Fletcher  v.  Vanzaiit,  1  Mo.  196 ; 
C.  C.  508;  Settle  v.  Davidson,  7  Mo.  Bentzen  v.  Zierlein,  4  id.  417;  Settle 
604 ;  Reed  u  Girty,  6  Bosw.  567 ;  Bax-  v.  Davidson,  7  id.  C04;  Weeks  v. 
ter  V.  Bell,  19  Hun,  367  (reversed,  86  Mascoma  Rake  Co,  58  N.  H.  101 ; 
N.  Y.  195);  Bennett  v.  Cad  well,  70  Green  v.  Beals,  2  Caines,  254;  Clem- 
Pa.  St.  253,  260 ;  Jacobs  v.  McBee,  2  ent  v.  Brush,  3  Johns.  Cas.  180; 
McMull.  348.  See  §§  535-539.  Niday  Skinner  v.  Dayton,  19  Johns.  518; 
V.  Harvey,  9  Gratt.  454 ;  In  re  Inter-  McBride  v.  Hagan,  1  Wend.  326 ; 
national  Contract  Co.  L,  R.  6  Ch.  Gates  v.  Graham,  13  id.  53;  James 
App.  525.  But  see  Dickinson  v.  Le-  v.  Bostwick,  Wright  (O.),  142;  Mc- 
gare,  1  Desaus.  (S.  Ca.)  537.  Naughten  v.  Partridge,  11  Oh.  223; 

■•^  Bennett  u  Cadwell,  70  Pa.  St.  253.  Pierce  v.  Cameron,  7  Rich.   L.  114; 

3  Chamberlain  v.  Madden,  7  Rich.  Pelzer  v.  Campbell,  15  S.  Ca.  581  j 
L.  395.  And  see  Robinson  u.  Wilkin-  Sloo  v.  Powell,  Dallam  (Tex.),  467; 
son,  3  Price,  538.  The  contrary  was  Regina  v.  McNaney,  5  Up.  Can.  P.  O. 
eaid  to  be  the  rule,  however,  in  Da-  438.  And  see  the  cases  cited  under 
vidson  V.  Kelly,  1  Md.  492 ;  Ander-  §  379.  Contra,  because  not  made  as 
son  V.  Levan,  1  W.  «&  S.  334,  and  his  own  act  and  deed,  Sellers  v. 
Ward  V.  Motter,  2  Rob.  (Va.)  536.  Streater,  5  Jones,  L.  261;  Fisher  v. 

4  Elliot  V.  Davis,  2  B.  &  P.  338;  Pender,  7  id.  483;  Hart  v.  Withers,  1 
Lay  ton  v.  Hastings,  3  Harr.  (Del.)  Pa.  285 ;  Lucas  v.  Sanders,  1  McMull. 
147;  Morris  v.  Jones,  4  id.  428;  Will-  311. 

iams  V.  Hodgson,  3  Har.  &  J.  (Md.)  SHerzog  v.  Sawyer,  61  Md.  344; 
474;  Armstrong  v.  Robinson,  5  Gill  Lucas  r.  Sanders,  1  McMull.  (S.  Ca.) 
&  J.  413;  Herzog  v.  Sawyer,  61  Md.    311;  Henry  County  v.  Gates,  26  Mo. 

438 


PARTICULAR  POWERS  BEFORE  DISSOLUTION.        §423, 

partner  alone  and  purporting  to  bind  him  only,  though  expressed 
to  be  for  the  firm,  and  is  approved  by  the  other  partner,  it  can 
only  be  declared  on  as  the  act  of  both.' 

§  422.  Remedy  in  equity. —  In  states  where  the  sealed  instru- 
ment merged  the  debt  against  the  partner  executing  it,  but  not 
that  of  the  copartners,  it  foUovved  that  they  could  not  be  sued  in 
assumpsit  against  objection  because  of  the  non-joinder  of  the  exe- 
cuting partner,  and  he  could  not  be  joined  because  only  liable  in 
covenant,  so  that  in  effect  the  debt  against  all  would  be  merged. 
To  avoid  this  it  has  been  held  that  equity  will  give  the  creditor 
a  remedy  against  the  other  partners;'  or  equity  will  enforce  the 
debt  on  the  ground  of  mistake.^  And  in  such  case  the  sealed  in- 
strument becomes  evidence  that  the  transaction  is  a  partnership 
matter,  and  of  the  amount  of  the  debt  as  an  admission.* 

In  Horton  v.  Child,  4  Dev.  (N.  Ca.)  L.  4G0,  a  bond  in  the  firm 
name  was  given  for  a  purchase  of  goods,  but  on  learning  that  it 
did  not  bind  the  firm,  the  executing  partner,  with  the  obligee's 
consent,  erased  the  seal  and  redelivered  it,  and  it  was  held  valid 
against  the  firm  as  a  note. 

If  the  sealed  note  was  in  fraud  of  the  other  partner  a  judgment 
taken  on  it  against  both  partners  will  be  relieved  against  in  equity.* 

§  423.  Rights  of  a  surety  on  the  instrument.—  Where  the 
unauthorized  sealed  instrument  is  signed  also  by  a  third  person  as 
surety,  it  is  held  in  some  cases  that  the  surety's  knowledge  of  the 
seal  prevents  his  raising  the  question  of  want  of  authority  or 
claiming  exoneration,  because  of  having  erroneously  supposed  the 

315,  317;  Hart  v.  Withers,  1   Pa.  285  viance  v.  Sutherland.  3  Oh.  St.  478; 

(21  Am.  Dec.  382).  Sale  v.  Dishman,  3  Leigh  (Va.),  548; 

1  Tattle  V.  Eskridge,  2  Munf.  (Va.)  Weaver  v.  Tapscott,  9  id.  424 ;  Brooke 
330,  of  a  lease  from  one  partner  in  v.  Washington,  8  Gratt.  248.  And 
his  own  name.  see  Hoskisson  v.  Eliot,  62  Pa.  St.  393. 

2  James  v.  Bostwick,  Wright  (O.),  ^Purviance  v.  Sutherland,  2  Oh. 
142;  Blan chard  r.  Pasteur,  2  Hayw.  St.  478;  Foster  v.  Rison,  17  Gratt. 
(N.  Ca.)  393;  Boston,  etc.  Smelting  321;  Hoskisson  v.  Eliot,  62  Pa.  St. 
Co.  V.  Smith,  13  R.  I.  27  (43  Am.  393;  Froneberger  u  Henry,  6  Jones, 
Rep.  3);  Niday  v.  Harvey,  9  Gratt.  L.  548.  Contra,  Hart  v.  Withers,  1 
454.  Pa.  283  (21    Am.   Dec.   382);  United 

8  Wharton  v.  Woodburn,  4  Dev.  &   States  v.  Astley,  3  Wash.  C.  C.  508. 
Bat.  507;  McNaughten  v.  Partridge,       5  Morgan  v.  Scott,  Minor  (Ala.),  81 
11  Oh.  223  (38  Am.  Dec.  731);  Pur-   (12  Am.  Dec.  35). 

439 


.^  424.  CONDUCT  OF  THE  BUSINESS. 

firm  bound  by  the  signature.'  On  tlie  other  hand,  it  is  held  that 
if  the  principal,  namely,  the  firm,  is  not  bound  the  surety  also  is 
not  bound.* 

To  sell  personal   property,  §  401  et  seq.;  real  property, 
§299. 
To  warrant  property  sold,  §  402. 

RATIFICATION   AND   AUTHORITY. 

§  424.  This  subject  has  already  been  considered  incident- 
ally,' and  it  is  only  necessary  here  to  state  the  general  prin- 
ciples. 

Whatever  is  in  the  power  of  one  partner  to  do,  may,  if 
done  by  an  agent,  be  made  to  bind  the  firm  by  the  ratifica- 
tion of  one  partner.'*  So,  also,  an  act  which  a  majority  can- 
not do,  cannot  be  ratified  by  the  majority. 

But  the  act  relied  on  as  a  ratification  must  have  been  done  on 
behalf  of  the  firm,  that  is,  in  the  capacity  of  a  partner,  otherwise  it 
will  not  bind  the  firm;  for  example,  where  a  clerk  without  author- 
ity made  and  signed  a  note  in  the  firm  name  to  one  partner,  who 

iHarter  v.   Moore,  5  Blackf.  367;  really  for  himself,  and  paid  it  volun- 

Stewart  v.  Behm,  2  Watts,  356 ;  Pel-  tariiy,  he  can  recover  from  the  firm ; 

zer  V.  Campbell,  15  S.  Ca.  581.  the  seal  was  used  by  mistake  in  this 

2  Russell  V.  Annable,  109  Mass.  72  case,  and  Wharton  u  Wood  burn,  4 

(12  Am.  Rep.  665) ;  and  see  Garland  Dev.  &  Bat.  L,  507.     Tliat  the  surety 

V.    Jacomb,    L.    R.   8   Ex.   216.     See  on   the  bond  can   sue   the  firm  for 

§§  347,  351.     In  Purviance  v.  Suther-  money  which  he  lent  to  the  execut- 

land,    2    Oh.    St.  478,   it   was  ruled  ing  partner  to  take  up  the  bond,  but 

that,  as  equity  will  give  a  remedy  not  if  he   had  taken   up    the   bond 

against  all  the  partners,  a  surety  who  himself,     Walden   v.   Sherburne,   15 

has  been  compelled  to  pay  the  debt  Johns.  409. 

was  held   to  have  a  remedy  in  as-  3  By  an  infant,  §145;  of  deviation 

sumpsit  against  the  firm,  of  which  from  the  firm  name,  §  203 ;  of  an  as- 

he  could  not  be  deprived  by  the  cred-  signment  for  creditors,   §339;  of  un- 

itor's    obtaining    judgment    against  authorized  notes,  §  363  ei  seg,;  of  con- 

the  executing  partner  alone,  and  this  fessions  of  judgment,  g  378;  of  sealed 

reason  also  influenced  the  court  in  instruments,  §  413. 

Pelzer    v.     Campbell,    supra.     And  *  Lyell  v.  Sanbourn,  2  Mich.  109,  of 

where  one  became  surety  on  a  bond  borrowing  by  an  agent  to  pay  a  firm 

in  the  firm  name  made  by  one  part-  debt.     And  see  Odiorne  v.  Maxcy, 

ner,    professedly   for  the  firm,    but  15  Mass.  39,  43. 

440 


PARTICULAR  POWERS  BEFORE  DISSOLUTION.        §  425. 

indorsed  it  over,  this  act  of  the  partner  being  in  his  own  behalf 
does  not  prove  authority  in  the  clerk.'  So  an  agent  without  au- 
thority to  accept  bills  is  not  invested  with  authority  by  the  fact  of 
the  bills  being  drawn  upon  him  by  one  of  the  partners  in  his  capac- 
ity as  partner  of  another  firm,  for  his  act  is  as  a  member  of  the 
drawer  and  not  of  the  drawee  firm.'' 

And  a  written  ratification  b}^  one  partner,  the  terms  of  which 
show  that  he  thought  the  unauthorized  contract  was  to  bind  all  or 
none,  does  not  bind  him  if  the  rest  refuse  to  ratify.^ 

If  the  partners  desire  to  ratify  and  hold  the  other  party,  they 
must  ratify  the  contract  as  made;  they  cannot  modify  its  terms  or 
ratify  in  part.'* 

And  no  new  consideration  moving  to  the  firm  or  the  other  part- 
ner is  necessary  to  such  assent.'  Nor  does  the  statute  of  frauds 
apply  to  permission  to  charge  to  the  firm  supplies  furnished  to  one 
partner,  for  the  firm  is  not  a  person  apart  from  its  members,  and 
such  sale  is  in  fact  to  the  firm,  though  for  the  benefit  of  one  part- 
ner.* 

The  partnership  books  and  accounts  showing  that  the  appropria- 
tion of  assets  to  pay  a  separate  debt  was  charged  to  the  account 
of  the  partner  is  evidence  of  the  assent  of  the  copartner.' 

If  an  unauthorized  executory  contract  has  been  ratified,  and  then 
is  not  performed,  the  other  partner  can  recover  from  both  partners 
the  payments  made  by  him,  though  the  money  was  received  by  the 
one  alone  who  had  made  the  contract.^ 

§  425.  Creditor  partner's  authority. —  Where  the  partner 
who  pays  his  private  debt  out  of  the  assets  of  the  firm  is  a 
creditor  of  the  firm  to  a  larger  amount  than  he  pays  out, 
and  acts  in  good  faith,  and  the  outside  debts  of  the  firm  are 
all  paid,  the  other  partner  suffers  no  injury,  and  the  appro- 
priation has  been  sustained  in  such  case.^    , 

1  Miller  v.  House,  67  Iowa,  737.  6  Davis  v.  Dodge,  30  Mich.  267.  See 

2  Bank  of  Montreal  v.  Page,  98  111.    §  365. 

109.  7  Foster  v.  Fifield,  29  Me.  136,  139; 

s  Roberts'  Appeal,  92  Pa.  St.  407.  Hood  v.  Riley,  15  N.  J.  L.  127. 

•*Fiye  V.  Sanders,  21    Kan.    26,  30  8  Lawrence  u  Taylor,  5  Hill,  107. 

(30  Am.  Rep.   421).  9  Corwin  v.  Suydam,  24  Oh.  St.  209 ; 

5Fosterv.  Fifield,  29  Me.  136;  Wil-  Sloan  v.   McDowell,   71    N.  Ca.   356. 

son  V.  Dargan,  4  Rich.  L.   544.    But  359-61  (citing  Piercyr.  Fynney,  L.  R. 

see  §§  565,  566.  12  Eq   69,  74,  in  which  the  plaintiff 

441 


§  427.  CONDUCT  OF  THE  BUSIN*ESS. 

§  426.  Knowledge  necessary. —  No  acts  will  amount  to  a 
ratification  unless  the  partner  has  knowledge  of  what  he  is 
ratifying;  ^  and  if  the  alleged  prior  authority  is  by  way  of 
estoppel,  as  in  the  nature  of  holding  the  partner  out  as 
authorized,  it  must  have  been  known  and  relied  upon  by 
the  plaintiff.^ 

§  427.  Prior  acts. —  Prior  similar  acts  are  evidence  of  the 
scope  of  the  business,  if  doubtful,  and  a  habit  of  the  firm 
is  evidence  of  authority.'  Thus,  a  habit  or  usage  between 
the  members  of  the  firm  to  settle  their  private  accounts  by 
delivering  goods  of  the  firm,  is  evidence  of  authority.* 

And  such  custom  may  be  incident  to  the  business;  as  a 
neighborhood  custom  in  a  country  store  to  trade  out  debts 
may  be  evidence  of  authority  in  a  partner  to  collect  by  re- 
ceiving articles  for  his  own  use.'' 

Yet  such  custom,  practiced  by  a  sole  managing  partner  without 
the  knowledge  of  the  copartner,  is  no  proof  of  the  latter's  assent.* 

A  single  prior  act  outside  of  the  scope  is  not  a  habit  nor  proof 
of  authority.' 

But  merely  that  such  payment  of  an  individual  debt  in  goods  is 
necessary  to  retain  the  creditor's  custom  is  no  evidence  of  author- 
sued  only  for  his  share).  Contra,  477;  Carter  v.  Beeman,  6  Jones  (N. 
Stewart  v.  Mcintosh,  4  Har.  &  J.  Ca.),  L.  44;  Hoskisson  v.  Eliot,  62 
(Md.)  233.  Pa.  St.  393;  Lee  v.  Macdonald,  6  Up. 

1  Andrews  v.  Planters'  Bk.  of  Miss.    Can.  Q.  B.  (Old  Ser.)  130. 

7Sm,  &Mar.  192  (45  Am.  Dec.  300);        <  Tay  v.  Ladd,  15  Gray,   296,   298; 

Norton    v.    Thatcher,    8    Neb.     186;  Davis   v.    Dodge,  30  Mich.  267;  Ev- 

Biggs  u.  Hubert,  14  S.  Ca.  620;  Gray  ernghim  r.  Ensworth,  7  Wend.  326; 

V.  Ward,  18  111.  32;  Hotchin  v.  Kent,  Carter  v.  Beeman,  6  Jones  (N.  Ca.), 

8  Mich.  526.     In  Woodward  v.  Win-  L.  44.     And  is  binding  on  the  firm 

ship,    12   Pick.  430,  knowledge  of  a  after  a  new  partner  has  been  adrait- 

purchase    was    lield    a    ratification  ted  if  the  private  creditor  was    not 

though  there  was  no  knowledge  that  aware  of  the  change.     Tay  v.  Ladd, 

it  was  on  credit.     But  see   Hotchin  supra. 
V.  Kent,  8  Mich.  526.  5  Eaton  v.  Whitcomb,  17  Vt.  641. 

2  Wilson  V.  Brown,  6  Ont.  App.  411.       6  Thomas  u.  Stetson,  62  Iowa,  537 

3  Gray  V.  Ward,  18  111.  32;  Folk  v.  (49  Am.  Rep.  148). 

Wilson,  21  Md.  538;  Hamilton  v.  -Levi??.  Latham,  15  Neb,  509  (48 
Phoenix  Ins.  Co.  106  Mass.  395;  Holt  Am.  Rep.  361),  where  a  non-trading 
V.  Simmons,  16  Mo.  App.  97;  firm  once  before  borrowed  and  gave 
McGregor    v.    Cleveland,    5   Wend,    a  note. 

443 


PARTICULAR  POWERS  BEFORE  DISSOLUTION.         §42^. 

ity,  for  tlie  firm,  and  not  the  debtor  partner,  must  decide  on  such 
application  of  property.' 

The  mere  fact  that  one  partner  had  occasionally  drawn  orders  on 
the  firm  to  pay  his  separate  debts,  not  amounting  to  a  uniform 
practice  and  not  known  to  the  creditor,  is  no  proof  of  assent  to 
the  other's  using  the  funds.*  A  custom  between  the  partners, 
when  one  owes  a  debt,  to  charge  his  account  with  it  and  assume 
the  debt,  is  not  broad  enough  to  authorize  his  use  of  joint  prop- 
erty to  pay  his  debt.^  Nor  will  a  custom  to  allow  debts  due  by 
one  partner  to  be  set  off  against  claims  of  the  firm  apply  only  to 
demands  that  could  be  legally  collected  against  the  firm,  and  not 
to  an  illegal  tavern  bill.* 

§  428.  Failure  to  dissent. —  After  the  act  has  been  done, 
a  failure  to  dissent,  on  being  informed,  is  not  a  recognition 
of  liability,  though  it  may  be  evidence  tending  to  show  it, 
if  he  is  silent  when  he  ought  to  speak;  ^  and  delay  of  a  co- 
partner to  repudiate  at  an  early  moment  the  use  of  assets  to 
pay  a  private  debt  ratifies  it.® 

But  the  acquiescence  must  be  voluntary  and  not  enforced;  thus, 
if  a  partner  obtains  the  exclusive  use  of  a  right  which  he  ought  tc 
hold  for  the  firm,  the  omission  of  the  other  partners  to  complain 
is  not  an  assent.' 

Remaining  passive  after  the  sale  of  a  hotel  business,  lease  and 
furniture  by  one  partner  was  held  not  to  be  an  estoppel;*  nor  is 

1  Cotzhaiisen  v.  Judd,  43  Wis*.  213  Ferguson  v.  Shepherd,  1  Sneed,  254 

(28  Am.  Rep.  539).  Bankhead  v.  AUoway,  6  Cold.  56,  96 

2Brewsterv.  Mott,  5  111.  378.  Eewes    v.   Paikman,   20    Pick.    90 

3  Forney  u  Adams,  74  Mo.  138.  Todd  v.  Lorah,  75  Pa.   St.  155.     See 

^Evernghim  v.  Ensworth,  7  Wend.  Livingston  v.  Pittsb.  &  Steub.  R.  R. 

326.     A  habit  of  the  active  partner  2  Giant's  Cas.  219;  Lowery  u  Drew, 

to  indorse  for  the  accommodation  of  18  Tex.    786;  Miller  u.  Dow,  17  Vt. 

others,    where    the    other    partner,  235. 

though  he  frequented  the  store,  was  6  Casey  v.  Carver,  43  111.  225;  Ma- 

not  a  manager,  and  is  not  shown  ti?^  vine  Co.   v.  Carver,  42   id.  67 ;  Cotz- 

have  known  of  it  or  of  the  notices  hausen  v.  Judd,  43  Wis.  213,  216   (28 

coming  to  the  store,  is  not  sufficient  Am.  Rep.  539). 

to   show    an    assent.     Andrews    v.  '>  Weston  v.  Ketcham,  39  N.  Y.  Su- 

Planters'  Bank  of  Miss.  7Sm.  &  Mar.  perior  Ct.  54. 

192  (45  Am.  Dec.  310).  8  Crossman  v.  Shears,  3  Ont.  App. 

'Barnard  v.  Lapeer,  6  Mich.  274;  583. 

443 


§  *ao. 


CONDUCT  OF  THE  BUSINESS. 


knowledge  of  an  intended  sale  of  the  whole  assets  by  one  partner 
an  assent.' 

§  429.  Acting  under  unauthorized  contract. —  Accepting 
the  benefits  or  acting  under  the  disputed  contract  tends  to 
prove  a  ratification,'-  but  not  if  in  ignorance  of  the  source  of 
the  benefit;^  and  so  of  acquiescence  in  one  partner  engag- 
ing the  firm  in  a  new  enterprise  with  others.* 

An  ofiPer  by  the  other  partner  in  trying  to  collect  the  amount 
due  the  firm  to  allow  the  set-off,  if  the  debtor  will  pay  the  balance, 
is  not  a  ratification,'  but  paying  a  subsequent  debt  so  created  is 
evidence  of  assent.* 

§  430.  Practice. —  Assent  of  the  copartner  maybe  shown  to 
validate  the  appropriation,  and  a  subsequent  ratification  is  as  effect- 
ual as  prior  assent; '  but  au  assent  after  an  assignment  by  the  firm  for 
the  benefit  of  creditors  is  too  late,  and  will  not  relate  back.*   The  bur- 


1  Sloan  V.  Moore,  37  Pa.  St.  217. 

2  Drumright  v.  Philpot,  16  Ga. 
434  (GO  Am.  Dec.  738),  dividing  pro- 
ceeds of  an  unauthorized  contract  of 
sale ;  Michigan  Air  Line  R'y  v.  Mel- 
len,  44  Mich.  321,  dividing  bonds 
taken  for  a  debt  in  lieu  of  cash,  by 
one  partner;  Banner  Tobacco  Co.  v. 
Jenison,  48  Mich.  459;  Levick's  Ap- 
peal (Pa.),  2  Atl.  Rep.  532,  dividing 
the  avails  of  an  unautliorized  sale  of 
the  whole  assets;  Waller  v.  Keyes, 
6  Vt.  257,  accepting  a  deed  for  an 
unauthorized  land  purchase  ;  Lynch 
V.  Flint,  50  Vt.  46 ;  Burnley  v.  Rice, 
18  Tex.  481,  494. 

3  Briggs  V.  Hubert,  14  S.  Ca.  620 ; 
Hotchin  v.  Kent,  8  Mich.  526,  of  a 
silent  partner  drawing  share  of 
profits  partly  derived  from  unau- 
thorized speculations;  Eaton  v.  Tay- 
lor, 10  Mass.  54,  partial  payments  on 
a  note  given  after  dissolution  ;  Clark 
V.  Hyman,  55  Iowa,  14,  accepting  se- 
curity against  an  unauthorized  guar- 
anty given  by  one  partner  in  the  firm 
name;  Holmes  u.  Kortlauder(Mich.), 


31  N.  W.  Rep.  532,  partial  payments 
to  an  attorney  employed  by  the  other 
partner  in  a  matter  not  strictly  in 
the  scope  of  business  but  beneficial 
to  it;  Jones  v.  Clark,  42  Cal.  180, 
paying  interest  on  a  note  given  by 
the  managing  partner  of  a  mine  for 
a  purchase  of  property;  Livingston 
V.  Pittsb.  &  Steub.  R.  R.  2  Grant's 
Cas.  (Pa. )  219,  permitting  stock  sub- 
sci'ibed  for  without  authority  to  be 
voted;  Porter  v.  Curry,  50  111.  319, 
selling  a  chattel  bought  by  the  co- 
partner without  authority  or  for 
himself. 

4Tabb  V.  Gist,  1  Brock.  33;  Mason 
V.  Connell,  1  Whart.  381;  Wood  v. 
Counell,  2  id.  542;  Buckingham  v. 
Hanna,  20  Ind.  110. 

5  Hurt  V.  Clarke,  56  Ala.  19  (28 
Am.  Rep.  751). 

6  Carter  v.  Beeman,  6  Jones  (N. 
Ca.),  L.  44. 

7  Noble  V.  Metcalf,  20  Mo.  A  pp.  360. 
« Clark  V.    Sparhawk,    2    Weekly 

Notes  (Pa.),  115.  But  see  the  case 
cited,  supra,  p.  122,  notes. 


444 


PARTICULAR  POWERS  BEFORE  DISSOLUTION.         §  430. 

den  of  proof  is  on  the  person  claiming  the  existence  of  such  authority 
or  assent  to  show  it,  for  such  appropriation  is  prima  facie  fraudulent 
and  collusive.'  That  the  assent  must  be  clearly  and  distinctly 
proved.''  If  the  property  delivered  to  one  partner  is  such  as  he 
would  need  for  partnership  purposes,  as  provisions  where  he  boarded 
the  shop  hands,  assent  will  be  presumed.^  Where  the  action  is  on 
a  note  signed  in  the  firm  name,  an  answer  of  one  partner  that  it 
was  made  by  the  other  partner,  without  knowledge  and  consent, 
for  his  separate  debt,  is  sufficient  without  averring  that  the  firm 
did  not  assume  it.  The  plaintiff  must  reply  the  assumption  in 
order  to  rely  upon  it.* 

The  fact  of  ratification  is  a  question  for  the  jury,^  and  whether  the 
act  was  in  the  scope  of  the  business  is  a  question  for  the  jury.' 

1  Johnston  v.  Crichton,  56  Md.  108;  5  Johnson  v.  Crichton,  56  Md.  108; 
Kemeys-r.  Richards,  11  Barb.  312;  Hewes  v.  Parkman,  20  Pick.  90; 
Corwin  v.  Suydam,  24  Oh.  St.  209.  Windham  Co.  Bank  v.  Kendall,  7  R. 

2  Hamilton  v.  Hodges,  30  La.  Ann.  I.  77 ;  Jones  v.  Booth,  10  Vt.  268. 
Part  n,  1290;  Haynes  u,  Sechrest,  13  SMaltby  v.   Northwestern  Va.   R. 
Iowa,   455;  Wise  v.  Copley,  36  Ga.  R.  Co.  16  Md.  422;  Hodges  v.  Ninth 
508;  Gray  v.  Ward,  18  111.  32;  Ke-  Natl  B'k,  54  id.  406;  Briggs  y.  Hubert, 
meya  v.  Richards,  11  Barb.  312.  14  S.   Ca.    620;  Crozier  v.  Kirker.  4 

3  Greeley  v.  Wyeth,  10  N.  H.  15.        Tex.  252  (51  Am.  Dec.  724) ;  McNeish 
<  Fordice  v.  Scribner,  108  Ind.  85.    v.  HuUess  Oat  Co.  57  Vt.  316. 

445 


CHAPTER  VII. 

POWER  OF  A  MAJORITY. 

§  431.  As  to  third  persons. —  Whatever  a  single  partner 
can  do  a  majority  can  do.  The  power  of  an  individual 
partner  to  bind  the  firm  to  third  persons  depends  on  the 
nature  or  scope  of  the  business,  as  well  as  upon  the  powers 
conferred,  and  this  subject  has  been  treated  of  in  the  pre- 
ceding pages.  But  the  converse  of  this  is  not  so  true,  that 
is,  it  cannot  be  said  always  that  the  revocation  of  power, 
which  one  partner  can  exercise  in  a  firm  of  two,  would  bind 
the  majority.  This  is  particularly  noticeable  in  two  aspects. 
In  a  firm  of  two,  one  partner  may  prevent  a  change  of  the 
internal  arrangement  or  management,  because  of  the  prin- 
ciple of  in  re  communi  potior  est  conditio  prohibentis;  and 
yet  a  majority  could  overrule  such  objection,  if  it  be  one 
not  fundamental. 

Again,  one  partner  in  a  firm  of  two  can,  by  notice  to  third 
persons,  revoke  the  agency  of  the  other  in  minor  matters, 
in  which  a  majority  could  overrule  the  objection.^ 

§  432.  Inter  se. —  The  power  of  a  majority  of  the  part- 
ners to  act  against  the  wishes  of  the  minority  must  be  con- 
sidered in  two  classes: 

1st.  In  matters  of  administration  of  the  business. 

2d.  In  matters  of  a  permanent  or  fundamental  character. 

As  to  the  tiansaction  of  the  ordinary  business  of  the  firm, 
and  the  carrying  out  of  the  declared  ol)jects  of  its  forma- 
tion, in  the  usual  way,  within  the  scope  of  the  business,  it 
follows  of  necessity  that  the  majority  must  control,  and 
that  the  minority  cannot  arrest  the  business  or  suspend  its 
operations.     If  there  are  no  stipulations  or  covenants  as  to 

1  Nolan  V.  Lovelock,  1  Montana,  Iowa,  504.  See  Anon.  v.  Layfield,  1 
224,  227;  Jolmsion  v.  Dutton,  27  Ala.  Salk.  202;  and  Cuirithers  v.  Jarrell, 
245 ;  Western  Stuge  Co.  v.  Walker,  2   20  Ga.  842. 

446       . 


POWER  OF  A  MAJORITY.  g  433. 

particular  practices  or  mode  of  conducting  ordinary  trans- 
actions, or  regulating  the  internal  affairs  of  the  partnership, 
the  majority  must  decide.' 

A  majority  may  order  a  division  of  profits,  while  debts  are  un- 
provided for,'  but  not  a  dividend  out  of  capital,  no  profits  being 
made;'  or  may  settle  and  agree  upon  an  account  of  the  profits  of  a 
voyage,^  but  not  for  a  return  of  capital/ 

So,  if  the  majority  decide  to  sell  the  stock  which  is  held  for  sale, 
the  decision  being  in  perfectly  good  faith  and  not  to  oppress  the 
minority,  they  are  not  accountable  for  not  getting  a  better  price 
than  they  did/ 

§  433.  Illustrations.— In  Kirk  v.  Hodgson,  3  Johns.  Ch.  400, 
the  firm  employed  a  clerk  for  two  years,  with  an  agreement  for  an 
increase  of  his  compensation  as  business  increased.  During  the 
third  year  he  was  found  to  have  appropriated  moneys;  nevertheless 
the  majority  continued  him  in  the  firm's  employ,  and  he  was  held 
entitled  to  the  increased  compensation.  The  act  of  the  majority 
binds,  good  faith  being  all  that  can  be  required,  and  their  continu- 
ing him  is  an  admission  that  he  has  not  forfeited  the  increase. 

So,  where  partners  in  the  business  of  conducting  a  newspaper 
had  agreed  that  a  publisher  should  be  selected  for  a  term  not  ex- 
ceeding five  years,  they  have  fixed  the  maximum  and  not  the  mini- 
mum term,  and  a  publisher  having  been  selected  for  no  fixed  time, 
and  he  neglects  his  duties  and  is  engaged  in  other  enterprises,  the 
action  of  the  majority  in  turning  him  out  and  selecting  another 
publisher  must  control  the  minority.' 

In  a  mining  partnership  the  majority  can  control  the  method  of 

1  Const  V.  Harris,  Turn.  &  R.  496 ;  4G5 ;  and  see  Stupart  v.  Arrovvsmith, 
Blisset  V.  Daniel,  10  Hare,  493;  John-    3  Sm.  &  G,  176. 

ston  V.  Dutton,  27  Ala.  245;  Western  SGansevoort  v.  Kennedy,  30  Barb. 

Stage  Co.  V.  Walker,   2  Iowa,    504;  279. 

Nolan  V.  Lovelock.  1  Montana.  224,  ^  staples  v.   Sprague,  75  Me.  458; 

227;   Zabrislvie  V.   Hackensack  &  N.  Western  Stage  Co.  u.  Walker,  2  Iowa, 

Y.  R.  R.  18  N.  J.  Eq.  178,  183;    Kirk  504. 

t'.   Hodgson,  3  Johns.   Ch.  400,  and  "Peacock  r.  Cummings,  46  Pa.  St. 

cases  cited  below.  434;   also   reported   in   5  Phila.  253. 

2  Stevens  v.  South  Devon  R'y  Co.  But  the   majority  in  certain   cases 
9  Hare,  313,  326.  may  not  have  power  to  change  the 

sMacdougall  v.  Jersey  Imperial  management.  C,  B.  &  Q.  R.  R.  v. 
Hotel  Co.   2  Hem.  &  M.  528.  Hoyt,  1  111.  App.  374. 

«  Robinson  v.  Ihompson,  1  Vernon, 

447 


§  434.  CONDUCT  OF  THE  BUSINESS. 

workinj^  and  the  conduct,  of  the  business,  provided  the  exercise  of 
such  power  is  within  the  limits  of  what  is  necessary  and  proper  to 
carry  on  the  enterprise  for  the  benefit  of  all.' 

The  majority,  however,  must  exercise  its  powers,  whether  ex- 
pressly conferred  or  existing  by  implication  of  law,  in  good  faith 
for  the  interest  of  the  firm,  and  not  for  the  interest  of  any  part  of 
the  members  or  from  personal  motives,*  The  dissenting  partner 
has  a  right  to  be  heard  and  an  opportunity  to  urge  his  objection.* 
Thus,  an  agreement  between  some  of  the  partners  to  overrule  the 
rest,  whatever  thej'  might  wish,  is  not  in  good  faith,  and  the  court 
could  compel  them  to  rescind  such  agreement.^ 

§  434.  in  fiiiulamental  matters. —  While  the  limits 

of  justifiahle  deviation  are  difficult  to  define,  there  are  cer- 
tain conditions  in  the  relationship  of  partners  of  the  char- 
acter and  authority  of  permanent  constitutional  restrictions 
or  fundamental  limitations,  and  whether  they  belong  to  this 
class  from  the  nature  of  the  partnership  or  by  the  express 
provisions  of  the  articles,  they  bind  all  as  a  solemn  contract, 
alterable  only  by  unanimous  concurrence. 

Even  if  the  articles  provide  that  the  majority  shall  gov- 
ern,^ or  that  a  general  meeting  may  amend,  alter  or  annul 
the  articles,  it  seems  that  this  class  of  limitations  cannot 
be  invaded  by  any  number  less  than  the  whole. ^ 

A  majority  cannot  take  up  a  new  kind  of  business  or 
change  the  nature  of  the  business.  The  partnership  being 
formed  to  pursue  one  kind  of  business,  the  right  to  confine 
it  to  that  is  a  fundamental  part  of  the  contract  rights  of 

1  Dougherty  r.  Creary,  30  Cal,  290.  2  Const  v.    Harris,  Turn.  &  Russ, 

"Where  the  majority  of  stockholders  496,    518,    525;    Blisset  v.  Dauiel,  10 

in   a  mining  corporation  which  had  Hare,  493,  523,  527. 

leased  its  hind  bouglit  out  tlie  lessee  3  Const  v.  Harris,  Turn.  &  R,  496; 

and  formed  a  partnership,  agreeing  Western    Stage    Co.    v.    Walker,    2 

to  vvorli.  together  as  shareholders  in  Iowa,  504. 

electing  directors  favorable  to  tliem-  .  ^  Const  v.  Harris,  Turn.  &  R.  496, 

selves,   and   not  to  sell   or   buy  its  518. 

stock  except  on  joint  account,  this  5  Livingston  r.  Lynch,  4  Johns.  Ch. 

is  not  against  public   policy,  but  a  573. 

prudent  management,  no  other  stock-  »  Smith   v.    Goldsworthy,  4  Q.  B. 

holder  being  injured  or  complaining.  430,  where  it  was  sought  to  reduce 

Faulds  V.  Yates,  57  111.  416.  the  capital. 

448 


POWER  OF  A  MAJORITY.  g  435. 

■each  partner;^  or  engage  the  firm  in  another  partnership;' 
or  reorganize  the  partnership  and  increase  the  number  of 
shares,'  or  reduce  the  capital;^  or  agree  to  dissolve  and  re- 
pay one  funds  he  had  advanced;^  or  make  a  loan  outside 
the  scope  of  the  business.** 

If  persons  subscribe  to  form  a  joint  stock  partnership  and  the 
majority  procured  the  incorporation  of  the  company,  the  subscrip- 
tions cannot  be  collected  from  those  who  did  not  assent.' 

A  stipulation  against  trading  in  spirituous  liquors,  if  put  in  the 
articles,  is  made  fundamental  and  material,  and  if  the  majority 
cliange  it  a  non-assenting  partner  may  withdraw  and  dissolve  the 
firm.* 

Nor  can  a  majority  release  a  partner  from  his  contingent  liability 
to  the  firm.' 

Nor  will  a  final  settlement  of  accounts  between  two  of  three 
partners  bind  the  third.'" 

§  435.  We  have  elsewhere  shown  that  a  majority  cannot 
convert  the  joint  assets  into  separate  property  by  dividing 
up  any  part  of  it,  for  the  equitable  lien  of  each  partner  ex- 
tends to  the  whole  property. 

Thus,  two  of  three  partners  in  the  purchase  and  subdivision  of 
a  tract  of  land  cannot,  without  the  consent  of  the  third,  agree  that 
one  of  them  shall  have  a  particular  part  of  it,  although  the  court 
may  protect  his  improvements  by  awarding  him  this  part  if  con- 
sistent with  the  rights  of  the  third  partner; "  nor  assign  a  claim 
to  one  partner  if  there  is  a  dissenting  partner.'^     If  the  articles 

iNatusch     V.    Irving,    2  Cooper's  ■?  Southern   Steam    Packet  Co.    v. 

Ch.  358;  Const  r.  Harris,  Turn.  &  R.  Magrath,  McMull.  (S.  Ca.)  Eq.  93. 

517,  the  two  leading  cases,  both  by  8  Abbot  v.  Johnson,  32  N.  H.  9. 

Lord  Eldon ;    Zabriskie    v.    Hacken-  9  Bill  v.  Porter,  9  Conn.  23. 

sack  &  N.  Y.  R.  R.  Co.  18  N.  J.  Eq.  lOChadsey  v.  Harrison,  11  111.  151; 

178,  183.  Cooper  v.   Frederick,   4  G.  Greene, 

2Tabbr.  Gist,  6Call(Va.),  279.  403;  Lamalere  v.   Caze,   1  Wash.  C. 

3  Livingston   v.   Lynch,   4    Johns.  C.  435.     See  Gansevoort  v.  Kennedy, 

Ch.  573.  30  Barb.  279. 

*  Smith  V.  Goldsworthy,  4  Q.  B.  ^^  Cooper  v.  Frederick,  4  G.  Greene 
430.  (Iowa),   403.     And    see    Gregory   v. 

*  Gansevoort  v.  Kennedy,  30  Barb.  Patcliett.  33  Beav.  595. 

279.  12  Bird  v.  Fake,  1  Pin.  (Wis.)  290 ; 

"Cooke  V.   Allison,  30    La.    Ann.    Horback  v.  Huey,  4  Watts,  455;  Bun 

Part  II,  903.  V.  Morris,  1  Caines,  54. 

Vol.  I  — 29  449 


436.  CONDUCT  OF  THE  BUSINESS. 

provide  that  in  case  of  sale  of  the  firm's  mill  before  dissolution 
the  proceeds  should  be  divided  equally  between  the  three  partners, 
this  is  made  a  property  right,  and  two  cannot  give  the  proceeds  to 
one  of  them  and  deprive  the  third  of  his  agreed  share,  though  he 
had  assigned  his  share  as  security  to  such  one;'  nor  agree  that  a 
purchaser  from  the  firm  could  settle  his  debt  by  crediting  it  on  his 
individual  account  against  one  partner."  Nor  can  a  general  meet- 
ing transfer  the  available  property  to  certain  shareholders  in  lieu 
of  their  shares,  practically  putting  an  end  to  the  companj'-  and 
throwing  the  debts  on  the  rest.' 

So  there  are  other  rights  and  duties,  as  the  duty  to  observe  good 
faith  and  not  to  compete,  etc.,  of  which  no  number  of  partners 
less  than  all  can  permit  a  violation.''  So  no  majority  could  bind 
the  members  of  the  firm  jointly  and  severally  by  contracts  even  in 
the  scope  of  the  business,  but  jointly  only.  So  no  majority  could 
admit  a  new  member.  * 

The  non-consenting  partner  or  partners  may  retire,'  or  may 
obtain  an  injunction;'  but  failure  to  object  after  knowledgCj  if 
amounting  to  acquiescence,  will  supply  the  want  of  authority.* 

1  Moore  v.  Knott,  12  Oregon,  260.       porations  than  to  the  powers  of  part- 
2Harter  v.  Wrigley,  48  Ga.  495.  ners.     They  can  be  found  in  Lindley 

2  Gregory  v.  Patchett,  33  Beav.  595.    on  Partnership,  pp.  604-5. 

*  See  generally  under  Good  Faith.  ^  Abbot  v.  Johnson,  32  N.  H,  9. 

5  In  the  English  decisions  are  many  ^  Natusch  v.  Irving,  2  Cooper's  Ch. 

interesting  cases  as  to  the  powers  of  358. 

a  majority  in  joint  stock   associa-  8  Natusch  v.  Irving,  supra;  Tabb  v. 

tions.     These  are  analogous  rather  Gist,  6  Call  (Va.),  279.     And  see  Ab- 

to  the  doctrine  of  ultra  vires  in  cor-  bot  v.  Johnson,  33  N.  H.  9. 

450 


CHAPTER  VIII. 

CONTRACTS  WITH  ONE  PARTNER. 

§436.  General  rules  of  agency. —  1st.  On  contracts  not 
under  seal  and  other  than  negotiable  paper,  if  the  principals 
are  disclosed  it  is  their  contract,  and  so  if  the  fact  of  agency 
is  disclosed  but  not  the  name  of  the  principal.  If  the  fact 
of  agency  is  not  disclosed  and  the  agent  acts  as  if  he  were 
principal,  the  person  dealing  with  him  may,  on  discovery  of 
the  principal,  hold  either  at  his  election. 

2d.  If  the  contract  is  under  seal,  and  is  executed  by  the 
agent  in  his  own  name,  he  alone  can  sue  or  be  sued  upon  it, 
even  if  the  fact  that  he  is  but  an  agent  be  disclosed. 

3d.  If  the  contract  be  negotiable  paper,  only  the  persons 
named  in  it  can  sue  or  be  sued  on  the  paper,  though  the 
paper  does  not  necessarily  merge  the  liability  on  the  original 
consideration. 

The  case  of  a  partner  contracting  jn  his  own  name,  though  gen- 
erally called  a  case  of  undisclosed  principal,  is  not  strictly  such, 
but  is  rather  a  case  of  an  agent  of  two  principals,  one  an  individual 
and  the  other  composed  of  several  joint  principals,  including  the 
individual  principal,  thus  raising  the  question  whether  he  acted  for 
his  sole  principal  or  for  the  body.  For  a  partner  is  not  agent  of 
the  others  or  of  each  of  them,  but  for  the  firm  as  a  body,  including 
himself,  and  either  represents  all  or  himself  alone. 

§437.  Simple  contracts  other  than  mercantile  paper. — 
Apart  from  sealed  instruments  and  mercantile  paper,  simple 
contracts  entered  into  in  the  name  of  one  partner  will  bind 
the  firm,  if  he  was  in  fact  acting  on  its  behalf,  although  the 
other  party  was  not  aware  of  the  existence  of  the  partner- 
ship. This  is  on  the  ground  that  such  partner  is  an  agent 
acting  for  an  undisclosed  principal. 

So  if  a  partner  makes  an  oral  contract,  saying  nothing  as 
to  whether  it  is  for  himself  or  for  the  firm,  if  it  be  in  fact 

451 


§  437.  CONDUCT  OF  THE  BUSINESS. 

oa  behalf  of  the  firm,  or  in  the  scope  of  its  business,  it  will 
be  deemed  to  be  a  partnership  transaction.  Thus  a  sale  to 
a  partner  of  goods  for  the  firm  is  prima  facie  a  sale  to  the 
firm.^  A  sale  by  a  partner  of  merchandise  of  the  firm  is  a 
sale  by  the  firm.-  A  contract  by  a  partner  with  reference 
to  the  business  is  the  contract  of  the  firm.^ 

An  employment  of  one  partner  in  the  scope  of  the  busi- 
ness is  deemed  to  be  the  employment  of  the  firm. 

Thus,  where  a  person  employs  an  attorney,  it  is  ordinarily  an 
employment  of  the  firm,  so  that  the  client  may  pay  any  partner, 
and  any  partner  may  perform  the  services.''  The  employment,  of 
course,  may  specially  stipulate  that  one  partner  alono  is  to  perform 
the  service,  and  in  such  case  if  another  partner  attend  to  the  case 
it  is  a  breach  of  contract,  but  the  damages  are  only  nominal,  if  no 
injury  is  sustained,  the  value  of  the  services  not  being  in  the  name, 
as  in  a  work  of  art;  and  if  the  particular  partner  die,  the  client  may 
go  elsewhere,  on  payment  to  the  survivor  for  the  services  as  far  as 
rendered.^  But  the  contract  is  partnership  property,  although  one 
partner  is  specially  employed,  and  all  must  sue  upon  it.' 

In  Spruhen  v.  Stout,  52  Wis.  517,  plaintiff  was  in  the  employ  of 
a  partnership  in  work  upon  a  mill,  and  part  of  the  time  was  di- 
rected by  one  partner  to  get  brick  from  ruins  belonging  to  such 
partner,  some  of  which  material  did  not  go  into  the  mill.  There  was 
no  notice  to  the  plaintiff  that  this  work  was  for  the  partner  in- 
dividually, and  he  was  held  entitled  to  assume  that  he  was  in  the 
partnership  employ  all  the  time,  and  can  look  to  the  firm  and  have 
a  lien  upon  their  building  for  the  whole  amount. 

So  a  contract  made  by  one  partner  in  his  own  name,  if  in  fact  a 
partnership  transaction,  must  be  enforced  in  the  names  of  all  the 
partners.''    And  any  promise  to  one  partner  inures  to  the  benefit 

1  Mills  V.  Barber,  4  Day,  430 ;  Dou-  De  Tastet  v.  Carrol,  1  Stark.  88 
gal  V.  Covvles,  5  id.  515;  Booe  v.  Clement  v.  British  Amer.  Assur.  Co, 
Caldwell,    13    Ind.    12;    Walden    v.    141  Mass.  208. 

Sherburne,  15  Johns.  422;  Augusta  <  Williams    v.    More,    63   Cal.    50 

Wine  Co.  v.  Weippert,  14  Mo.  App.  Harris    v.   Pearce,   5   111.    App.  622 

483.     So    of    a    loan, '  Sherwood    v.  Eggleston  v.  Boardman,  37  Mich.  17, 

Snow,  46  Iowa,  481 ;  26  Am.  Rep.  155.  5  Smith  v.  Hill,  13  Ark.  173. 

2  Lambert's  Case,  Godbolt,  244;  6  Jackson  u.  Bohrman,  59  Wis.  422 
Badger  V.  Daenieke,  56  Wis.  678.  7  Gage    v.   Rollins,   10    Met.     348; 

3  Anon.   V,    Layfield,    1   Salk.  291 ;  Jackson  v.  Bohrman,  59  Wis.  422. 

452 


CONTRACTS  WITH  ONE  PARTNER.        §  438. 

of  all;'  hence,  a  law  firm  may  sue  upon  the  special  employment  of 
one  partner." 

The  most  usual  instances  of  contracts  by  one  partner  upon 
which  the  entire  firm  is  held  arise  where  the  copartners  are  either 
actually  dormant,  or  the  existence  of  the  partnership  is  unknown 
to  the  other  party,  in  which  case  they  are  treated  as  dormant  as  to 
him. 

§  438.  Sealed  instruments  in  the  name  of  one  partner. — 

It  is  to  be  noticed  that  we  are  considering  the  liability  on 
contracts  made  in  the  name  of  a  single  partner.  If  the  con- 
tract is  in  the  name  of  the  firm,  it  purports  on  its  face  to  be 
intended  as  a  partnership  act,  and  the  question  then  raised 
is  as  to  the  power  of  a  partner.  For  this  subject  see  Sealed 
Instrument. 

Applying  the  rules  stated  in  §  436  to  partnerships,  if  a 
partner  contracts  in  his  own  name  under  seal,  he  alone  and 
not  the  firm  is  bound.^  Thus  where  a  partner  gives  his  in- 
dividual bond  or  note  under  seal,  it  cannot  be  shown  that 
credit  was  given  to  the  firm.^  So  of  a  lease  by  one  partner 
in  his  own  name,^  or  a  purchase,  and  bond  and  mortgage 
to  secure  the  price,  all  in  the  name  of  one  partner.® 

1  White  V.  Williams,  Willm.  Woll.  illegal.    Hopkinson  v.  Smith,  1  Bing. 

&  Hod.  53.     This  subject  will  appear  13. 

more  fully  when  we  come  to  consider  3  Hancock  v.  Hodgson,  4  Bing.  269; 

who  may  be  plaintiffs.     §  1019.  Hall  v.  Bainbridge,  1  M.  &  G.  43. 

zjacksou  tj.  Bohrman,  59  Wis.  422.  *  Tom  r.    Goodrich,  2  Johns.    213; 

But  where  an  attorney  keeps  an   of-  Willis  v.  Hill,  2  Dev.  &  Bat.  (N.  Ca.) 

fice   in   a  town  other  than  that  in  L.    231;  Moore  v.  Stevens,    CO  Miss, 

which   he     practices,    which     is    in  809;  United  States  i;,  Atstiey,  3  Wash. 

charge  of  a  clerk,  and  the  attorney  C.  C.  508 ;  North  Pennsylvania  Coal 

is  employed  in  that  town,  but  the  en-  Co.'s  Appeal,  45  Pa.  St.    181;  Krafts 

tire  service  is  pei'formed  by  the  clerk,  v.  Creighton.  3  Rich.  (S.  Ca.)  L.  273; 

collection  of  fees  was  defeated  either  and    see  Walden   v.    Sherburne,    15 

on   the  ground  of  public  policy,  the  Johns.  423;  Butterfield  v.  Hemsley, 

courts  desiring  to  keep  the  profes-  12  Gray,  226;  Harris  v.  Miller,  Meigs 

sion  pure,   and    not  allow    employ-  (Tenn.),  158  (33  Am.  Dec.  138). 

ments   to   be  attended  to  by  clerks,  8  Tuttle   V.  Eskridge,   2  Munf,  330. 

who  should  be  with  the  attorney  re-  6  Williams  v.  Gillies,  75   N.  Y.  197 

ceiving  instruction,  or  on  the  ground  (rev.    13  Hun,  422).      Contra,  if  he 

that  there  was  a  partnership  between  was  authorized  to  make  the  transac- 

the  attorney  and  the  clerk,  which  is  tion,  Morse  v.  Richmond,  97  111.  303 

(aff.  6  111.  App.  166). 
453 


§439. 


CONDUCT  OF  THE  BUSINESS. 


This  rule  does  not  apply  if  the  copartner  was  secret,  else 
the  latter  could  always  escape  liability.^ 

§  439,  Nogotial)Ie  paper  made  in  the  name  of  one  partner. 

A  fii'in  name  being  the  agreed  sytnbol  representing  all  the 
partners,  whether  named  in  it  or  not,  is  the  signature  of  all. 
whether  they  be  ostensible  or  dormant  or  nominal  (see 
under  Name),  even  though  the  firm  name  be  the  name  of  one 
partner  alone,  as  to  which  see  hereafter.  But  where  there 
is  a  firm  name  which  is  other  than  the  name  of  the  partner, 
and  a  creditor  takes  negotiable  paper  bearing  the  name  of 
one  partner  alone,  the  general  rule  is  that  the  firm  cannot 
be  held  as  parties  to  such  paper. '^ 

Thus,  where  a  note  was  taken  in  the  name  of  one  partner,  evi- 
dence of  the  maker's  declarations  at  the  time  cannot  be  given  to 
show  a  loan  to  the  firm,  where  the  other  partner  had  not  consented 
to  notes  being  given  in  the  name  of  one  alone,  and  the  payee  knew 
the  firm  name  was  not  that  of  such  partner.' 


I  Chamberlain  v.  Madden,  7  Rich. 
L.  395.  Contra,  see  Davidson  v. 
Kelly,  1  Md.  492. 

2SiflFkin  v.  Walker,  2  Camp.  308; 
Emly  V.  Lye,  15  East,  7;  Lloyd  v. 
Ashby,  3  C.  &  P.  138;  Ex  parte  Bo- 
litho,  Buck.  100;  Bevan  v.  Lewis,  1 
Sim.  376;  Driver  v.  Burton,  17  Q.  B. 
989 ;  Nicholson  v.  Ricketts,  2  E.  &  E. 
497;  Williams  v.  Thomas,  6  Esp.  18; 
Murray  v.  Somerville,  2  Camp.  99; 
Bottomley  v.  Nuttall,  5  C.  B.  (N.  S.) 
122;  Miles'  Claim,  L.  R.  9  Ch.  035;  Le 
Roy  V.  Bayard,  2  Pet.  186 ;  Coote  v. 
Bank  of  U.  S.  3  Cranch,  C.  C.  95 ;  Re 
Herrick,  13  Baukr.  Reg.  312;  Ripley  u. 
Kingsbury,  1  Day,  150,  n.  a;  Strauss 

]v.    Waldo,   25  Ga.    641;  Macklin  v. 

'  Crutcher,  6  Bush,  401 ;  Ostrom  v. 
Jacobs,  9  Met.  454;  Uhler  v.  Brown- 
ing, 28  N.  J.  L.  79 ;  Graeff  v.  Hitch- 
man,  5  Watts,  454;  Farmers'  Bank  v. 
Bayless,  35  Mo.  428;  Dryer  v.  San- 
der, 48  id.  400;  Coster  v.  Clarke,  3 
Edw.  Ch.  411;  Allen  v.  Coit,  6  Hill, 


318;  Siegel  v.  Chidsey,  28  Pa.  St.  279; 
National  Bank  v.  Thomas,  47  N.  Y. 
15;  Holmes  v.  Burton,  9  Vt.  252;  31 
Am.  Dec.  621 ;  Cunningham  v.  Smith- 
sou,  12  Leigh  (Va.;,  32 ;  Goldie  v.  Max- 
well, 1  Up.  Can.  Q.  B.  424.  Contra, 
Seekel  v.  Fletcher,  53  Iowa,  330; 
Paine  v.  Dwinel,  53  Me.  52;  Tucker  v. 
Peaslee,  36  N.  H.  167 ;  Hill  v.  Voor- 
hies,  22  Pa.  St.  68;  Puckett  v.  Stokes, 
2  Baxter  (Tenn.).  442;  Burnley  v. 
Rice,  18  Tex.  481,  497;  Sessums  v. 
Henry,  38  id,  37;  Foster  v.  Hall,  4 
Humph.  (Tenn.)  340.  Where  two 
establishments  in  the  same  place 
and  same  business  were  conducted 
by  the  same  person  as  proprietor  of 
one  and  partner  in  the  other,  and  ho 
obtains  money  from  a  bank  on 
checks  signed  by  him  as  agent,  the 
firm  may  show  that  they  do  not  owe 
the  bank.  Mechanics  &  Traders'  Bk. 
V.  Dakin,  24  Wend.  411. 

3  Ostrom   V.   Jacobs,    9    Met.   454; 
Coote  V.  Bank  of  U.  S.  3  Cranch,  C. 


454 


CONTRACTS  WITH  ONE  PARTNER.  §  440. 

In  Crozier  v.  Kirker,  4  Tex.  252,  257  (51  Am.  Dec.  724),  it  was 
said  that  if  the  note  signed  by  one  partner  appear  on  its  face  to 
have  a  joint  operation  and  to  be  on  partnership  account,  the  payee 
can  sue  the  maker  or  all  the  partners  at  his  election. 

In  Lemon  v.  Fox,  21  Kan.  152,  the  manager  of  a  bank,  author- 
ized to  sign  certificates  of  deposit  in  his  own  name,  omitted  the 
designation  "  manager  "  on  signing  one,  with  the  intention  of  tak- 
ing the  money  as  a  loan  to  himself,  the  depositor,  however,  intend- 
ing it  as  a  deposit,  and  not  noticing  the  change,  and  all  the  partners 
were  held  liable  on  the  certificate. 

If  the  paper  given  is  not  negotiable  paper  the  question  does  not 
arise.  Thus,  weighers'  tickets  addressed  only  to  the  purchasing 
partners  is  not  an  agreement  to  look  to  them  alone.'  And  so  of  a 
receipt  in  the  name  of  one  partner.* 

§  440.  Liability  of  firm  on  original  consideration  when 
not  bound  by  the  paper. —  Where  the  individual  paper  of 
one  partner  is  taken,  yet  if  the  sale  was  made  to  and  upon 
the  credit  of  the  firm,  the  other  partners  will  be  liable  for 
the  original  consideration  as  for  money  lent  or  goods  sold, 
although  they  are  not  liable  upon  the  paper,  which  is  merely 
collateral.' 

In  Sorg  V.  Thornton,  1  Cint.  Super.  Ct.  Rep.  383,  T.,  P.  &  Co., 
who  had  been  in  the  habit  of  borrowing  from  the  plaintiff,  took  in 
a  new  partner,  D.,  and  the  name  was  changed  to  P.  &  Co.  T., 
who  was  still  a  partner,  applied  to  the  plaintiff  for  a  loan  for  the 

C  95;  Uhler  v.  Browning,  28  N.  J.        ^  Ex  parte  Bvown,  cited  in  1  Atk. 

L.  79.    Yet  whetlier  a  personal  cheek  225 ;  Siffkin  v.  Walker,  2  Camp.  308 ; 

for  the  loan  was  payment  so  as  to  Denton  v.  Rodie,  3  Camp.  493;  Maffet 

take  away  recourse  on  the  firm  or  v.  Leuckel,  93  Pa.  St.  468;  Burns  v. 

not  was  held  a  question  of  intention  Parish,    3    B.    Mon.   8 ;    Mackliu    v. 

or  agreement,  to  be  left  to  the  jury,  Crutcher,  6  Bush,  401 ;  Allen  v.  Coit, 

in  Smith  v.  ColUns,  115   Mass.  388.  6    Hill,    318;  Smith    v.   Collins,   115 

As  to. the  effect  of  an  indorsement  Mass.  388;  Duval  v.   Wood,   3  Lan- 

over  by  one  partner  in  his  own  name  sing,    489;    Graeff    v.   Hitchman,  5 

of  a  note  in  the  name  of  the  firm,  see  Watts',  454;  Hoeflinger  v.  Wells,  47 

§  200.  Wis.  628 ;  Sorg  v.  Thornton,  1   Cint. 

1  Smith  V.  Smyth,  42  Iowa,  493.  Super.  Ct.  Rep.  383;  Weaver  v.  Tap- 

'-JReevs  v.  Hardy,  7  Mo.  348;  Her-  scott,   9   Leigh  (Va.),  424;  Cuuuing- 

som  V.  Henderson,  3   Foster  (23  N.  ham  v.  Smithson,  12  Leigh,  32.   And 

H.).  498,  504;  Brown  v.  Lawrence,  5  see   Beebe  v.    Rogers,    3  G.  Greene 

Conn,  397.  (Iowa),  319. 

455 


§  441.  CONDUCT  OF  THE  BUSINESS. 

new  firm,  the  plaintiff  being  ignorant  of  the  change  of  name,  and 
gave  him  a  note  in  the  name  of  the  old  firm.  The  new  firm  was 
held  liable  for  the  loan,  for  T.  had  power  to  borrow,  and  his  giving 
a  worthless  note  does  not  exonerate  the  firm  from  liability  for 
money  lent. 

So  the  note  of  one  partner  may  be  taken  as  collateral  and  not 
as  payment  unless  paid. 

In  Emly  v.  Lye,  15  East,  7,  a  leading  case,  Geo.  Lye  and  E.  L. 
Lye,  partners  as  Geo.  Lye  &  Son,  employed  Home  as  their  boo,k- 
keeper,  and  he  procured  the  discount  of  bills  from  one  Borrough, 
some  drawn  in  the  firm  name  and  some  in  the  names  of  G.  Lye 
only  and  of  E.  L.  Lye  only.  The  proceeds  of  all  the  bills  were  used 
for  the  partnership  and  Borrough  believed  the  firm  was  held  on 
all.  In  an  action  against  both  partners  on  bills  by  E.  L.  Lye,  the 
count  on  the  bill  was  abandoned  and  reliance  was  placed  on  the 
money  counts  alone,  which  Lord  Ellenborough  held  to  be  proper, 
unless  it  was  desired  to  pursue  E.  L.  Lye  only,  as  the  names  of 
others  than  the  signer  could  not  be  supplied  by  intendment. 

So  in  Siffkin  v.  Walker,  2  Camp.  308,  Walker  &  Roulstone  being 
indebted  to  the  plaintiff,  a  note  for  the  debt  was  given  him  signed 
by  Walker,  and  both  were  sued  upon  it,  but  it  was  held  that  the 
remedy  was  either  against  both  on  the  debt,  or  against  Walker 
alone  on  the  note  as  a  separate  security  for  a  joint  debt. 

§441.  Bills  on,  or  to  account  of,  the  firm.— As  a  bill 
could  be  accepted  orally,  an  acceptance  of  a  draft  upon  the 
firm  by  one  partner  in  his  own  name  binds  the  firm,  unless 
the  statute  requires  an  acceptance  to  be  in  writing.^    Bat 

1  Wells  V.  Masterman,  2  Esp.  731 ;  Up.  Can.  C.  P.  230,  on  the  ground 
Mason  v.  Rumsey,  1  Camp.  384;  Jen-  that  a  partner  can  only  bind  the 
kins  V.  Morris,  16  M.  &  W.  879;  Dol-  firm  in  the  firm  name.  In  the  latter 
man  r.  Orchard,  2  C.  &  P.  104;  May  case,  however,  the  payee  had  con- 
V.  Hewitt,  33  Ala.  161;  Dougal  v.  structive  notice  that  the  acceptance 
Cowles,  5  Day,  511,  515;  Pannell  r.  was  unauthorized  for  other  reasons. 
Phillips,  55  Ga.  618;  Beach  v.  State  And  see  Taber  v.  Cannon,  8  Met.  456. 
Bank,  2  Ind.  488;  Cunningham  v.  In  Markham  v.  Hazen,  48  Ga.  570, 
Sinithson,  12  Leigh,  32;  Tolman  v.  a  bill  was  drawn  upon  a  firm  in  its 
Hanrahan,  44  Wis.  133.  But  contra,  correct  name,  The  Republican  Asso- 
where  the  acceptance  is  required  to  ciation,  whoso  business  was  the  pub- 
be  written,  Re  Adansonia  Co.  L.  R.  lication  of  a  newspaper  called  Tlie 
9  Ch.  App.  635;  Ileenan  v.  Nash,  8  Opinion.  One  partner  accepted  tlio 
Minn.  407,  and  Hovey  v.  Cassels,  30  bill  thus:  "  Accepted  for  The  Opinioii 

456 


CONTRACTS  WITH  ONE  PARTNER.        §  441. 

the  accepting  partner  may  be  sued  separately  if  his  accept- 
ance was  unauthorized  and  not  binding  on  the  firm.^ 

Where  a  partner  accepts  in  the  firm  name,  and  adds  his 
own  name  also,  no  individual  liability  is  created.^ 

If  a  partner  draws  a  bill  in  his  own  name  on  his  firm  for 
its  use,  it  is,  in  legal  contemplation,  an  acceptance  of  the 
firm,  and  the  firm  can  be  sued  upon  it.' 

In  Bank  of  Rochester  v.  Monteath,  1  Den.  402  (43  Am.  Dec. 
681),  the  partnership  did  business  in  Rochester  in  the  name  of 
John  Allen,  and  in  Albany  in  the  name  of  Wm.  Monteath,  and 
the  former  drew  a  bill  on  the  latter,  who  accepted;  it  was  held  to 
be  a  bill  on  themselves  on  which  both  could  be  held  as  drawers  or 
indorsers  as  well  as  for  money  lent.* 

So  if  a  partner  authorized  to  raise  money  draw  on  a  debtor  or 
correspondent  of  the  firm,  directing  the  amount  to  be  charged  to 
the  firm's  account,  the  payee  can  recover  of  the  firm  on  the  draft.^ 
But  .the  draft  of  a  third  person  on  one  partner  "on  account  of " 
the  firm,  and  accepted  by  him  in  his  own  name,  was  held  to  be  his 
personal  acceptance  only,  though  the  firm  might  be  liable  for  ita 
amount.* 

If  a  bill  is  drawn  upon  a  firm  by  an  incorrect  name,  but 
is  accepted  in  the  right  name,  the  firm  is  bound.  ^ 

newspaper,"  and  signed  his  initials.  ^s.  P.  Wright  v.  Hooker,  10  N.  T. 

This  was  held  sufficient,  but  was  put  51,  approving  the  above  case,    and 

upon  the  ground  that  it  sufficiently  disapproving   Allen   v.   Coit,  6  Hill, 

identified  the  firm.  318,  and   Rogers  v.  Coit,    id.    323,  if 

lOwen  V.  Van  Uster,  10  C.  B.  318.  they  are  inconsistent  with  it. 

2i2e  Barnard,  33  Ch.  D.  447;  Mai-  sheimsdyk  v.   Kane,  1   Gall.  630; 

colmson  v.  Malcolmson,  1  Irish  L.  R.  Farmers'   Bank  v.    Bayliss,   41   Mo. 

Ch.  D.  228,  where   he  accepted  for  274,  287.     And  see  Beebe  v.  Rogers, 

the   M.  Spinning  Co.  and  self.     For  3  Iowa,  319;  Morse  r.  Richmond,  97 

cases  of  use  by  a  partner  of  a  name  111.  303  (aff'd,  6  111.  App.  166),  where 

varying  from  the    firm    name,   see  a  partner  holding  the  title  to  real  es- 

§  199.  tate  was  authorized  to  borrow  and 

SDougal   V.    Cowles,    5   Day,    511;  signed  in  his  own  name  as  "trustee," 

McKiuney     v.     Bradbury,     Dallam  « Cunningham     v.     Smithson,    12 

(Tex.),  441 ;  Beach  v.  State  Bank,  2  Leigh,  32. 

Ind.  488.     And  see  Denton  v.  Rodie,  "As  where  a  bill  was  drawn  upon 

3   Camp.   493,    where   the   firm   was  Ashbj'  &  Rowland  in  the  name   of 

held  liable  not  on  the  paper  but  as  Ashby  &  Co.,  but  accepted  as  Ash  by 

for  a  loan  to  it.  &  Rowland,  the  acceptance  binds  all 

457 


§  413.  CONDUCT  OF  THE  BUSINESS. 

But  a  bill  drawn  upon  one  partner  and  accepted  by  him 
in  the  name  of  the  firm  will  not  bind  the  firm.' 

§  44:2.  Renewal  of  firm  debt  by  individual  note.— Where 

a  firm  debt  is  renewed  on  the  individual  note  of  a  single  partner, 
with  tlie  assurance  that  the  other  is  to  sign,  and  the  latter  com- 
plained of  the  omission  of  his  name,  as  showing  a  desigii  to  cheat 
him  out  of  the  profits,  the  firm  continues  liable.'' 

After  the  retirement  of  a  partner  known  to  the  creditor,  the  effect 
of  an  extension  of  the  debt  to  the  continuing  partner  belongs  to 
another  subject.     See  §§  532-534. 

§  443.  Firm  in  the  name  of  one  partner. — But  the  name 
of  one  partner  may  itself,  by  prior  agreement,  represent  all 
the  partners,  as  where  it  is  the  usual  firm  name,  or  has 
been  permitted  to  be  used  as  such  for  certain  purposes,  of 
w^hich  the  act  in  question  is  one.  Where  this  is  the  case, 
his  signature  to  a  note  or  contract,  or  any  other  act  done  by 
him  or  in  his  name,  may  be  an  individual  act  or  a  partner- 
ship act,  and  hence  is  necessarily  equivocal.  The  guides  for 
determining  whom  the  name  represents  are  as  follows: 

1.  Prima  facie,  that  is,  in  the  absence  of  all  other  evi- 
dence, the  signature  of  the  individual  is  taken  to  be  what  it 
purports  to  be,  his  personal  act.  In  other  words,  the  name 
presumptively  represents  the  person,  and  not  the  firm.^ 

the  partners,  Lloyd  v.  Ashby,  2  B.  &  369);   Etheridge  v.   Binney,  9  Pick. 

Ad.  23.     See  Faith  v.  Richmond,  11  272,  274;    U.  S.  Bank  v.  Binney,  5 

A.  «&  E.  339.     An  order  on  H.,  "gen-  Mason,  17G;  Gernon  v.  Hoyt,  90  N. 

eral   partner,"  and  accepted  in  the  Y.  031;  Buckner  v.  Lee,  8  Ga.  285; 

firm  name,  is  an  order  on  the  firm,  Strauss  v.  Waldo,  25  Ga.  041;  Boyle 

which  consisted  of  H.  and  a  special  v.  Skinner,  19  Mo.  82;  Mercantile  B'k 

partner,    Carney    v.    Hotchkiss,    48  v.  Cox,  38  Me.  500,  50(5 ;  Oliphant  v. 

Mich.  276.  Mathews,  16  Barb.  008  (cited  appro v- 

iNicl.olls  V.  Diamond,   9  Ex.  154;  ingly  in  Yorkshire  Banking  Co.  v. 

Mare  v.  Charles,  5  E.  &  B.  978.  Beatson,  4  C.  P.  D.  204);  Nat'l  Bank 

2  Horsey    v.    Heath,    5    Oh.    353;  v.  Ingraliam,  58  Barb.  290;    Puckett 

McKee  v.  Hamilton,  33  Oh.  St.  7.  v.    Stokes,    2  Baxter,   442 ;    and   see 

^Ex  parte    Bolitho,    Buck.     100;  Williams  v.  Gillies,  75  N.  Y.  197  (rev. 

Yorkshire  Banking  Co.  v.  Beatson,  4  13  Hun,  422).     Contra,  that  it  is  pre- 

C.  P.  D.  204;  Bank  of  Rochester  v.  suinably  a  partnership  act,  MilBln  v. 

Monteath,  1   Den.  402,  405   (43   Am.  Smith,   17   S.  &  R.    165  (svhich  was 

Dec.  681);  Manufacturers',  etc.  Bank  doubted  in    Burrouglis'    Appeal,    26 

V.  Winship,  5  Pick.  11  (16  Am.  Dec.  Pa.    St.   204,   but  said    in  Jones  v. 

458 


CONTRACTS  WITH  ONE  PARTNER.        §  443. 

In  Fosdick  v.  Van  Horn,  40  OIi.  St.  459,  L.  &  E.  were  doing  sev- 
eral kinds  of  business  in  the  same  firm  name,  and  Fosdick  was  a 
dormant  partner  in  one  of  them,  and  a  note  was  given  in  the  firm 
name,  and  it  was  held  that  this  note  is  presumed  to  he  the  note  of 
the  firm  not  containing  the  dormant  partner,  unless  it  be  proved 
to  have  been  on  the  credit  or  for  the  business  of  the  other  firm,  and 
this  may  be  proved  by  representations  made  at  the  time  of  borrow- 
ing, o^  by  other  circumstances;  and  the  dormant  partner,  on  his  side, 
may  show  that  the  books  of  his  firm  contain  no  entry  of  the  trans- 
action.' 

If  the  partnership  is  not  a  trading  one,  or  a  partnership  where 
there  is  implied  power  to  give  notes,  the  note  is  an  individual  mat- 
ter, unless  there  was  special  authority  to  make  it;  and  so  if  the 
transaction  was  not  within  the  scope  of  the  business.'' 

If  there  is  evidence  that  the  transaction  was  a  partnership 
matter,  as  where  the  partner  declared  the  purchase  or  loan 
was  for  the  business,  or  for  the  firm,  if  the  plaintiff  knew 
there  was  a  firm,  or  if  the  plaintiff  kimself  at  the  time 
avowed  to  the  partner  that  he  was  dealing  with  him  in  the 
capacity  of  partner  or  was  trusting  the  firm,  this  shows 
the  transaction  to  be  a  partnership  one,  and  the  name  then 
represents  and  binds  all  the  jDartners.'' 

Sv5  if  mercantile  paper  payable  to  one  partner  belongs  to  the 
firm,  whose  name  is  also  his  name,  the  fact  of  the  partnership  be- 
ino-  concealed,  his  indorsement  of  the  notes  renders  his  secret  part- 
ners  liable.* 

Fegely,   4  Phila.  1,  2,  never  to  have  ney,  5  Mason,    176  •,  Wiusliip  v.    B'k 

been  overruled);  Yorkshire  Banking  of  U.  S.  5  Pet.  539   532.     See  Tlieilen 

Co.  t?.   Beatson,  4  C.   P.  D.  204;  5  id.  v.   Hann,    27   Kan.   778;  Macklin  v. 

109,  presumed  to  be  for  the  firm,  if  Crutcher,  6  Bush,  401;  Moaler.  Hol- 

maker  had  no  other  business.  lins,  11  Gill&  J.  11 ;  Getchell  v.  Fos- 

1  S.  P.  In  re  Munn,  3  Biss.  442.  So  ter,  106  Mass.  42;  Thorn  v.  Smith,  21 
of  insurance  on  partnership  prop-  Wend.  364,  36 J-7;  National  Bank  v. 
erty.  Ingraham,    58  Barb.    290;    Crocker 

2  As  in  Marvin  v.  Buchanan,  62  v.  Colwell,  -^6  N.  Y.  212;  Gernon  v. 
Barb.  468.  Hoyt,    90     N.     Y.     631 ;   Gavin    v. 

3  Stephens  v.  Reynolds,  5  H.  &  N.  Walker,  14  Lea,  643. 

513;  1  F.  &  F.  739;  2  id.  147;  York-       4  Mohawk  Nat'l  B'k  r.  Van  Slyck, 
Bhire  Banking  Co.  v.  B  atson,  4  C.  P.  ,29  Hun,  1S8. 
D.  204;  5  id.  109;  U.  S.  Banku  Bin- 

459 


g  444.  CONDUCT  OF  THE  BUSINESS. 

Of  course,  if  tlieve  is  a  firm  name,  a  partner  cannot  cast  upon  the 
firm  tlio  burden  of  loans  incurred  by  himself  in  his  own  name  by 
declaring  they  were  for  the  firm.' 

If  the  partner  borrows  on  his  own  account,  merely  representing 
that  the  money  is  to  be  used  in  the  firm's  business  is  not  sufficient. 
The  lender  must  understand  that  he  is  dealing  with  the  firm^ 
through  the  partner.* 

That  insurance  upon  partnership  property  of  a  partnership, 
where  the  firm  name  is  the  name  of  one  partner,  and  the  insurance 
is  taken  in  his  name  without  disclosure  of  the  fact  of  partnership, 
which  was  a  limited  one,  will  cover  the  entire  interest,  and  a  proof 
of  loss,  stating  that  such  partner  is  the  sole  owner,  is  not  false 
swearing,  for  the  property  belongs  to  the  firm  of  that  name.* 

It  has  been  also  held  that,  if  the  maker  has  no  other  business,  his 
signature  to  a  note  will  be  deemed  to  represent  the  partnership.* 

§  444-.  These  rules  also  apply  where  the  partners  have 
not  adopted  the  name  of  one  as  their  firm  name  generally, 
but  it  is  so  used  with  their  express  or  implied  authority.^ 

As  if  the  partners  sometimes  dealt  in  the  name  of  one  partner  as 
a  firm  name,  this  may  be  left  to  the  jury  as  evidence  that  it  was 
the  firm  name  in  the  transaction  in  question;^  or  where  no  firm 
name  had  been  agreed  on,  each  partner  can  use  his  individual  name 
to  represent  the  firm;'  so  where  the  acting  partner,  no  name  hav- 
ing been  agreed  on,  introduced  a  name  without  the  concurrence  of 
the  rest.* 

1  Uhler  r.  Browning.  28  N.  J.  L.  79;  reconciles  any  seeming  inconsist- 
Dryer  v.  Sander,  48  Mo.  400.  ency  in  the  decisions  as  to  the   lia- 

2  Ah  Lep  V.  Gong  Choy,  13  Oregon,  bility  of  the  firm  of  Jolin  Winship  in 
205.  Manufacturers',  etc.    Banii   v.   Wm- 

3  Clement  v.  British  Am.  Assur.  ship,  5  Pick.  1  (16  Am.  Dec.  3G9),  and 
Co.  141  Mass.  298.  A  note  given  by  Winship  v.  Bank  of  U.  S.  5  Pet.  539. 
the  ostensible  partner  in  whose  namo  5  Jn  re  Warren.  2  Ware,  322 ;  South 
the  firm  was  carried  on,  to  his  dor-  Carolina  Bank  v.  Case,  8  B.  &  C. 
mant  partner,  for  the  amount  of  427;  2  Man.  &  Ry.  459.  See  Morse  v. 
capital  the  latter  had  contributed,  is  Richmond,  97  111.  303  (aff.  6  111.  App. 
tlie    maker's    individual    note.     i?e  166). 

Waite,  1  Low.  207.  6Le  Roy  r.  Johnson,    2  Pet.   186, 

♦  Bank  of  Rochester  v.  Monteath,  1    200. 
Den.  402  (43  Am.    Dec.    681);  York-       ^Kitner  r.  Whitlock,    88  III.  513-; 
shire  Banking  Co.  v.  Beatson,  4  C.    Getcliell  v.  Foster,  lOG  Mass.  42. 
P.  D.  204 ;  s.  C.  5  id.  109.     And  this       «  Holland  v.  Long,  57  Ga.  36,  40. 

460 


CONTRACTS  WITH  ONE  PARTNER.         §  445. 

Ill  Crocker  v.  Colwell,  46  N.  Y.  212,  the  firm  of  Colwell  &  Dim- 
mick  kept  their  bank  account  in  the  name  of  Dimmick  alone,  and 
hence  all  checks  were  drawn  in  his  name;  hence,  where  Dimmick 
drew  his  check,  with  the  amount  left  blank,  for  the  purchase  of 
stock  for  the  firm,  and  an  agent  of  the  firm  filled  up  the  amount 
and  procured  the  plaintiff  to  cash  it,  and  the  agent  claimed  to  have 
lost  part  of  the  amount,  Dimniick's  name  was  held  to  be  the  firm 
name  for  the  purpose  of  drawing  checks,  and  the  firm  was  held 
liable  on  the  check. 

So  if  all  the  partners  assent  to  the  use  of  the  name  of  one  to  des- 
ignate the  firm  in  certain  transactions,  though  there  be  a  firm 
name,'  or  even  in  a  single  transaction,"  or  where  the  bank  account 
is  kept  in  the  name  of  one  partner  alone,  his  check  on  partnership 
account  binds  the  firm.^ 

§  445.  dormant  and   undisclosed  partnerships. —  If 

the  plaintiff  did  not  know  of  the  existence  of  a  partnership, 
as  where  the  other  partner  was  a  dormant  one,  or  though 
an  active  partner  was  not  disclosed  to  the  plaintiff,  or  the 
partner  w^as  authorized  by  the  firm  to  use  his  own  name  in 
a  class  of  transactions,  and  the  plaintiff  did  not  know  of 
the  existence  of  a  firm,  here  the  rules  of  agency  as  to  the 
liability  of  an  undisclosed  principal  for  acts  of  the  agent  in 
his  own  name,  of  which  the  principal  gets  the  benefit,  ap- 
ply.* In  other  words,  a  person  dealing  with  a  firm  is  pre- 
sumed to  trust  to  all  who  composed  it,  known  or  unknown. 

1  Palmer  v.  Stephens,  1  Den.  471.  244;  Tucker  v.  Peaslee,  36  N.  H.  167; 

2  Seekel  v.  Fletcher,  53  Iowa,  330;  Baxter  v.  Clark,  4  Ired.  (N.  Ca.)  L. 
Sprague  v.  Ainsworth,  40  Vt.  47.  127;  Poole  v.  Lewis,  73  N.  Ca.  417; 
And  see  Folk  v.  Wilson,  21  Md.  538.  Reynolds  v.   Cleveland,  4  Cow.  2!!<3 

3  Crocker  v.  Colwell,  46  N.  Y.  212.    (15  Am.  Dec.  369);  Howell  v.  Adams, 
«S,  Ca.  Bank  v.  Case,  8  B.  &  C.  427;    68  N.  Y.  314,  320;    Poillon  v.  Secor, 

Vera  v.  Ashby,  10  B.  &  C.  288;  LI.  61  id.  456;  Crockery.  Colwell,  46  id. 

&  W.  20;  Wintle  v.  Crowther,  1  Cr.  213;   Everi'tt  v.  Cliapman,  6  Conn. 

&  J.  316;  9  L.  J.  Ex.  65;  Jn  re  War-  347;    Graeff  v.  Hitchman,   5  Watts, 

ren,  2  W^are,  322;  Palmer  v.  Elliot,  1  454;  Mifflin  v.  Smith,  17  S.  &  R.  165; 

CliiT,  63;  ^-jcj^arfe  Law,  8  Deac.  541;  McNair     v.    Rewey,     62    Wis.    167; 

Bigelow  V.  Elliot,  1  Cliff.  28 ;  Bisel  v.  Holmes  v.  Burton,  9  Vt.  252  (81  Am. 

Hobbs,  6  Blackf.  479;  Morse  r.  Rich-  Dec.  621);  Strauss  v.  Jones,  37  Tex. 

mond,  97  111.  303  (aff.  6  111.  App.  166);  313;    Davidson   v.  Kelly,  1    Md.  493; 

Richardson   v.    Farmer,    36   Mo.   35;  Kennedy   v.  Bohannon,   11   B.  Mon. 

Smith  V.  Smith,  7  Foster  (27  N.  H.),  118;  Farr  v.  Wheeler,  20  N.  H.  569; 

461 


§  446.  CONDUCT  OF  THE  BUSINESS. 

This  does  not  mean  that  every  note  by  a  person  having  a  dor- 
mant partner,  for  a  purchase  of  goods  to  be  put  into  the  firm,  is  a 
partnership  liability.  If  the  signer  intended  the  note  to  be  his  in- 
dividual liability,  the  payee  must  sue  the  firm  on  the  original  lia- 
bility and  not  on  the  note.'  And  so  held  even  when  the  lender  or 
seller  believed  it  was  for  the  firm,  in  the  absence  of  any  act  of  the 
partner  inducing  such  belief.' 

In  Ontario  Bank  v.  Hennessey,  48  N.  Y.  545,  one  partner  was  au- 
thorized to  draw  drafts  to  pay  for  purchases  and  did  so.  There 
was  no  firm  name  and  the  lender  did  not  know  there  any  partners. 
It  was  held  that  his  name  was  to  all  intents  the  name  of  the  firm 
and  the  draft  was  deemed  to  be  a  firm  act,  and  that  the  question 
need  not  be  submitted  to  the  jury.^  In  Poole  v.  Lewis,  75  N.  Ca. 
417,  423,  where  the  firm  of  P.,  Y.  &  Co.  was  a  member  of  the  firm 
of  P.,  L.  &  Co.,  and  bought  goods  to  be  put  into  the  latter  firm, 
and  the  vendor  charged  them  to  the  former  firm,  it  was  said  that, 
to  show  that  the  vendor  credited  the  buyer  also,  where  the  fact  of 
a  partnership  was  not  disclosed,  he  must  be  proved  to  have  known  of 
the  partnership  and  to  have  elected  to  look  to  the  buyer  alone,  be- 
cause he  will  not  be  supposed  to  have  taken  less  security  than  he 
was  entitled  to. 

In  the  cases  where  the  fact  of  partnership  was  unknown  to  the 
other  party,  he  can  sue  the  person  who  contracted  with  him  alone. 
(See  Defendants,  §  1052.) 

§  446.  Firm  not  liable  by  getting  benefit  of  contract  of 
partner. —  The  mere  fact  that  the  firm  received  the  benefit 
of  a  loan  to  or  pm'chase  by  an  individual  partner  does  not 
make  it  liable.  The  debt  being  his  debt,  his  disposition  of 
the  proceeds  or  consideration  has  no  effect  on  the  creditors' 

Hersom  v.  Henderson,  3  Foster  (23   mant.     Contra,  Miller  v.   Manice,  6 
N.  H.),  498,  r)04.     The  New  Hamp-    Hill,  114. 

shire  cases  seem  to  go  a  little  farther       l  Palmer  v.  Elliot,  1  Cliff.  63. 
than  the  others  in  holding  the  firm       2  Manufacturers',  etc.  Bank  v.  Win- 
liable.    Griffith  uBuffum,  22  Vt.  181    ship,  5   Pick.   11   (16  Am.  Dec.  369); 
(54  Am.  Dec.  64);  Goddard  v.  Brown,    Buckner  v.  Lee,  8  Ga.  285.     But  see 
11  Vt.  278,  that  tlie  partner  cannot    g  447. 

object  to  being  sued  alone.     Alexan-       3  One  judge  dissented,  and  the  case 
der  V.  McGinn,  3  Watts,  220,  that  he    is  questioned  in  Williams  v.  Gillies, 
can  object  where  the  other  partners,    75  N.  Y.  197. 
though  not  disclosed,  were  not  dor- 

463 


CONTRACTS  WITH  ONE  PAETNER.        §  446. 

relations  to  the  debt  or  debtor,  and  does  not  enable  the 
creditor  either  to  look  to  the  firm  or  to  share  pari  passu 
with  partnership  creditors  in  the  distribution  of  its  assets. 
He  can  look  only  to  the  person  he  trusted,  unless  that  per- 
son was  in  fact  an  agent,  and  it  is  in  the  determination  of 
this  fact  that  the  difficulty  lies;  but  assuming  that  the  con- 
tracting partner  was  acting  for  himself  alone  and  was  the 
sole  debtor,  no  subsequent  enjoyment  or  benefit  of  the  pro- 
ceeds implicates  the  firm,  except  the  partner  from  whom  it 
receives  the  contribution.*  Thus,  where  a  partner  borrows 
money  or  procures  merchandise  for  the  purpose  of  contrib- 
uting it  as  the  share  of  the  capital  agreed  to  be  paid  in  by 
him.^  So  if  a  person  borrows  money  or  purchases  goods 
and  afterwards  takes  in  a  partner,  and  the  firm  gets  the  ben- 
efit of  the  loan  or  purchase,  this  does  not  make  the  incoming 
partner  liable.' 

Thus,  where  Hunter  &  Co.  had  ordered  goods  for  shipment  to 
and  sale  in  the  Baltic,  and  afterwards  agreed  with  Hoffman  &  Co. 
to  share  the  profit  and  loss  of  the  adventure  with  them,  they  are 
not  liable  to  the  seller.*  Even  though  the  purchase  was  made  in 
the  name  of  the  expected  firm,  if  the  incoming  partner  does  not 

'  This  doctrine  is  considerably  mod-  20  New  Brunswick,    267.     On   this 

ified  in  Louisiana,  if  the  firm  has  re-  principle  it  was  decided  in  Barton  v. 

ceived  the  benefit.     Roth  v.  Moore,  Hanson,  2  Taunt.  49,  that,  if  several 

19  La.  Ann.  86;  Penn  v.  Kearny,  21  persons  haul   with  their  individual 

id.  21 ;  Lagan  v.  Cragin,  27  id.  352.  horses  the  several  stages  of  a  coach, 

2  Evans  v.   Winston,   74  Ala.  349;  sharing    the    profits,   they    are    not 

Person  V.  Monroe,  1  Foster  (21  N.  H.),  jointly  liable    for    the  feed   of  the 

462;  Elliot  v.  Stevens,  38  N.  H.  311,  horses. 

McLinden  v.    Wentworth,    51   Wis.        3  Young  v.  Hunter,  4  Taunt.  582; 

170;  Logan  v.  Bond,  13  Ga.  192;  Mat-  Atwood  v.  Lockhart,  4  McLean,  350; 

lack  V.  James,  13  N.  J.  Eq.  126,  Pol-  Smith  v.  Hood,  4  III.  App.  360;  Watt 

lock  r.  Williams,  42  Miss.  88;  Burns  v.    Kirby,    15    111.    200;   Duncan   v. 

V.   Mason,  11  Mo.  469;  Wittram   v.  Lewis,  1  Duv.  (Ky.)  183;  Ketchum  v. 

Van  Wormer,  44  111.  525,  Bank  v.  Durkee,  Hoffm.  (N.  Y.)  538;  Brooke 

Sawyer,  38  Oh.  St.  339,  342;  Valen-  v.  Evans,  5  Watts,  196;   Doually  v. 

tine  V.  Hickle,  39  id.  19,  27,  Donally  Ryan,  41  Pa.  St,  306;  Bank  v.  Gray, 

V.   Ryan,  41   Pa.    St.   306;   Foster  v.  12    Lea    (Tenn.),     459;     Taggart    v. 

Barnes,    81    id.   377;    McNaughton's  Phelps,  10  Vt.  318 ;  Howell  v.  Sewing 

Appeal,  101  id.  550;  Stebbins  v.  Wil-  Machine  Co.  12  Neb.  177,  179. 
lard,  53  Vt.  665 ;  Robertson  v.  Jones,       *  Young  v.  Hunter,  4  Taunt.  582. 

463 


g44G. 


CONDUCT  OF  THE  BUSINESS. 


authorize  it.'  But  the  principle  was  held  not  to  apply  where  the 
delivery  of  the  articles  so  purchased  was  made  to  the  firm  and  on 
its  credit,*  unless  made  to  the  partner  alone.'  Yet  if  the  firm  gets 
the  benefit  of  the  transaction,  and  it  is  but  justice  that  it  assume 
the  debt,  such  assumption  has  been  held  to  convert  it  into  a  claim 
against  the  firm.* 

So  where  a  partner  borrows  money  on  his  own  responsi- 
bility and  credit,  from  one  who  has  knowledge  of  the  exist- 
ence of  the  firm,  and  uses  the  money  for  the  firm  or  pays  it 
into  the  firm,  it  is  his  debt  alone.* 

So  if  a  person  receives  money  not  in  the  scope  of  the  business, 
and  uses  it  for  the  benefit  of  the  partnership,  this  does  not  charge 
the  other  partners.  In  Pickels  v.  McPherson,  59  Miss.  216,  P.,  be- 
ing indebted  to  the  firm  of  D.  &  M.,  delivered  to  D.  a  note  made  by 
a  third  person,  to  collect,  it  being  outside  the  scope  of  the  busi- 
ness to  take  notes  for  collection;  D.  agreed  to  pay  the  debt  due 
to  the  firm  out  of  the  avails,  and  give  P.  the  balance;  but  D.  used 
the  balance  in  the  firm's  business,  by  paying  its  debts  with  it.  The 
claim  for  the  balance  Avas  held  to  be  D.'s  individual  debt,  and  for 
which  M.  was  not  liable.^ 

•  iGaus  V.  Hobbs,  18  Kan.  500.  In  Wiggins  v.  Hammond,  1  Mo.  121; 
Evans  v.  Winston,  74  Ala.  349,  352,  a  Asbuiyr.  Flesher,  1 1  Mo.  GIG;  Farm- 
mortgage  was  made  b\' one  partner   ers'   Bank   v.    Bayless,    So   Mo.    428; 


in  consideration  of  $150,  loaned  by 
tbe  mortgagee  to  tlie  mortgagor, 
"then  entering  into  a  partnership 
with  R.  in  the  name  of  R.  &N.,"  and 
the  court  said  that  this  might  mean 
in    order    to    replenish    the    stock, 


Farmers' Bank  v.  Bayliss,  41  Mo.  274; 
Tucker  v.  Peaslee,  36  N.  H.  167;  Cos- 
ter V.  Clarke,  3  Edw.  Cli.  411 ;  Ryder 
V.  Gilbert,  IG  Hun,  163;  National 
Bank  v.  Thomas,  47  N.  Y.  15;  Willis 
V.  Hill,  2  Dev.  &  Bat.  (N.  Ca.)L.231; 


which  would  be  a  partnership  debt ;    Peterson  v.    Roach,  33   Oli.    St.    374 
or  to  provide  his  share  of  the  capital,    (30  Am.  Rep.  607);  Bank  v.  Sawj'er, 


which  would  be  his  individual  debt, 
and  there  was  an  equipoise. 

2  Watt  V.  Kirby,  supra. 

aid. ;  Taggart  v.  Phelps,  supra. 

4  See  5^515. 

s  LeRoy  v.  Johnson,  2  Pet.  186, 199 
Smith  V.  Hoffman,  2  Cranch,  C.  C 
G51 ;  Guicc  v.  Thornton,  76  Ala.  466 
Mechanics'  &  T.  Ins.  Co.  v.  Richard 
son,  33  La.  Ann.  1308  (39  Am.  Rep, 
290);  Green  v.  Tanner,  8  Met.  411 
Goodrich   v.    Leland,   18   Mich.    HO 


S8  Oh.  St.  339;  Ah  Lep  v.  Gong 
Choy,  13  Oregon,  205 ;  Graeff  v. 
Hitchman,  5  Watts,  454;  Foster  i: 
Hall,  4  Humph.  (Tenu.)346;  Union 
&  Planters'  Bk.  v.  Day,  12  Heisk.  413 ; 
McLindeu  v.  Wentworth,  51  Wis. 
170,  181;  Willis  v.  Bremuer,  60  Wis. 
622;  McCord  v.  Field,  27  Up.  Can. 
C.  P.  391. 

6Hogan   V.   Reynolds,    8  Ala.    59; 
Dounce  v.  Parsons,  45  N.  Y.  180. 


464 


CONTRACTS  WITH  ONE  PARTNER.        §  447. 

So  if  a  sale  of  goods  is  made,  with  knowledge  of  the  ex- 
istence of  the  firm,  but  on  the  individual  credit  of  one  part- 
])QV  alone,  though  the  goods  are  turned  over  by  him  to  the 
tii-m,  or  bought  with  that  intention.^ 

One  partner  purcha'^ed  flour  on  his  own  behalf,  but  this  being 
tlie  business  of  the  firm,  the  firm  claim  the  benefits  of  it;  but  this 
light  cannot  avail  any  one  else,  and  hence  the  seller  cannot  hold 
the  firm.* 

^  447.  When  the  firm  is  trusted,  and  when  one  partner 
only. —  As  already  suggested,  difficulty,  especially  on  oral 
contracts,  frequently  attends  determining  whether  credit  was 
in  fact  given  to  the  individual  partner  or  to  the  firm.  The 
question  is  one  of  intention  to  be  determined  by  the  jury 
from  the  circumstances,  unless  the  contract  is  written,  and 
is  on  its  face  conclusive,  which  it  sometimes  is,  though 
oftener  not. 

If  the  contract  is  within  the  scope  of  the  business,  the 
mere  fact  that  a  single  partner  is  dealt  with  is  immaterial, 
where  not  expressly  on  his  individual  credit,  and  the  con- 
tract will  be  deemed  to  be  with  the  firm  unless  the  contrary 
appears.' 

So  a  person  paying  money  at  the  request  of  a  member  of  a  firm 
for  an  apparently  firm  purpose,  as  on  a  note  signed  by  the  firm,  can 

1  Law  V.   Cross,    1  Black,  533,  fol-  tlie  contract  does  not  bind  the  firm, 

lowed  without  comment  in  Simpson  the  partners  are  liable  in  proportion 

V.  Baker,  3  id.  581 ;  Bird  v.  Lanius,  7  to  their  number  for  the  benefits  re- 

Ind.  615;  Wittram  v.  Van  Wormer,  ceived.     Lallande  v.  McRae,  16  La. 

44  111.   525;    Lafon  v.   Cliinn,    6    B.  Ann.  193. 

Mon.  305;  Bracken  v.  March,  4  Mo.        3  church  u.  Sparrow,  5  "Wend.  223 

74;  Gates  v.    "Watson,    54  Mo.   585;  "Walden  u.  Sherburne,  15  Johns.  409 

Nichols  V.  English,  3  Brewster  (Pa.),  Hamilton  v.  Einer,  20  La.  Ann.  391 

250;     McDonald    v.    Parker,    Sneed  Sleeker  v.  Smith,  46  Mich.  14;  Au- 

(Ky.),    208 ;  Macklin  v.    Crutcher,  6  gusta  "Wine  Co.  v.  "Weippert,  14  Mo. 

Bush,    401;  Venable    v.    Levick,    2  App.   483;  McKinney  v.    Bradbury, 

Head  (Tenn.),   351 ;  Holmes  v.   Bur-  Dallam  (Tex.),  441 ;  Allen  v.  Owens, 

ton,    9  Vt.  252;  31   Am.    Dec.    621;  2  Spears  (S.  Ca.),  170;  Stark  r.  Corey, 

Chapman  v.  Devereux.  32  "Vt.  616;  9  45  111.  431 ;  Steel  v.  Jennings,  Cheeves 

Am.  Law  Reg.  (O.  S.)  419.  (S.    Ca.),  183;  Venable  v.   Levick,   3- 

2Lockwood  V.   Beckwith,  6  Mich.  Head  (Tenia.),  351. 
163.     In  Louisiana,  however,  while 

Vol.  1  —  30  465 


§  448.  CONDUCT  OF  THE  BUSINESS. 

hold  the  firm,  unless  he  knew  that  it  was  an  individual  matter  or  a 
forgery.' 

In  Baker  v.  Nappier,  19  Ga.  520,  the  plaintiff  sold  goods  to  K., 
supposing  in  the  exercise  of  ordinary  care  that  they  were  for  the 
firm  of  K.  &  A.,  but  K.  intended  them  for  K.  &  B.,  and  it  was  ruled 
that  he  could  hold  K.  &  A.,  the  goods  being  suitable  for  that  firm; 
though  the  general  rule  is  that  ordinary  care  on  the  part  of  the 
seller,  knowing  of  the  existence  of  both  firms,  requires  him  to  in- 
quire which  firm  is  intended,  if  the  buyer  does  not  indicate  which. 

So  of  a  loan  of  money;  the  lender  may  assume  it  is  for  the  firm, 
unless  it  is  stated  to  be  for  individual  purposes.** 

In  Mills  V.  Bunce,  29  Mich.  364,  it  was  said  that  in  determining 
whether  the  firm  or  one  partner  was  dealt  with,  a  considerable  de- 
gree of  latitude  in  the  proof  tending  to  show  that  the  other  part- 
ner knew  the  plaintiff  understood  himself  to  be  dealing  with  all 
should  be  allowed. 

If  the  contract  on  which  it  is  sought  to  hold  the  firm  was  a 
matter  not  connected  with  the  business,  it  is  presumptively  a' per- 
sonal contract  with  the  individual  partner,  though  in  the  firm 
name.* 

§  448.  evidence  eliarging  the  firm. —  Merely  that  the 

other  partners  were  aware  that  the  money  was  to  be  borrowed  or 
contract  made  does  not  make  the  borrower  an  agent  of  the  firm  in 
the  matter;  *  nor  a  mera  request  that  plaintiff  become  surety  on 
the  note  of  the  borrowing  partner,  for  that  is  not  a  promise  to  in- 
demnify, and  does  not  make  the  loan  a  partnership  debt;  *  yet  the 
acquiescence  of  the  other  in  plaintiff's  performing  for  the  firm  serv- 
ices contracted  for  with  one  partner  is  evidence  of  joint  liability.* 

The  firm  may  assume  the  dehi  with  the  creditor  s  assent.  Here 
the  consideration  must  be  considered  to  be  the  release  of  the   in- 

iBlinn  v.  Evans,  24  111.  317.  for  the  balance,  yet  it  was  held  that 

2  Sherwood  r.  Snow,  40   Iowa,  481  C.    could   recover  the  balance  from 

(26  Am.  Rep.  ISo).    In  Rose  v.  Baker,  the  firm. 

13   Barb.  230,  A.  &  P.,  in  1847,  were  SRulledge  v,  Squires,  23  Iowa,  53; 

partners  in  buying  wheat.     C.  let  A.  and  see  generally  under  Scope  of  the 

have   $.300,  which    was  used  to   pay  Business,  and  §§  340,  421. 

for  wheat  bought  for  the  firm.     A  *  Farmers'  Bank  v.  Bayliss,  41  Mo. 

few   days    afterwards   A.    gave     C.  274. 

his  individual  note,  and  a  year  after-  6  Asbury  v.  Flesher,  11  Mo.  610. 

wards,  and  after  dissolution,  A.  paid  <»Bo\vne    v.   Thompson,    1     N.   J. 

a  part  and  gave  his  individual  note  L.  2. 

466 


CONTRACTS  WITH  ONE  PARTNER.        §  448. 

dividual  liability  of  the  borrowing  partner,  since  the  past  benefit 
or  moral  consideration  is  not  sufficient.' 

In  Union  Bank  v.  Eaton,  5  Humph.  (Tenn.)  501,  it  was  held 
that  if  money  was  borrowed  by  a  partner  on  his  own  credit,  and 
his  own  note  was  given,  but  the  money  went  to  the  use  of  the 
firm,  it  was  no  fraud  on  his  copartners  to  substitute  the  firm  note 
afterwards  for  his  own,  and  if  the  money  was  borrowed  for  and  on 
the  credit  of  the  firm,  the  firm  is  liable  on  a  partnership  note  sub- 
stituted for  the  individual  note,  though  there  was  no  proof  that  the 
money  was  actually  so  applied.* 

But  in  McCord  v.  Field,  27  Up.  Can.  C.  P.  391,  where  a  partner 
borrowed  money,  giving  his  individual  notes,  and  used  it  for  the 
firm,  and  to  secure  them  signed  another  note  in  the  firm  name,  it 
was  held  that  there  could  be  no  recovery  on  the  latter  against  the 
firm.^ 

And  in  Gansevoort  v.  Williams,  14  Wend.  133,  it  was  held  that 
a  note  of  the  firm  to  renew  a  note  of  one  partner  did  not  have 
the  appearance  of  being  the  act  of  the  firm,  and  that  the  creditor 
must  show  that  it  was  authorized. 

In  Meader  v.  Malcolm,  78  Mo.  550,  the  lender  took  the  individual 
note  of  the  partner,  not  noticing  the  signature,  and  not  so  intend- 
ing, but  afterwards,  on  discovering  this,  immediately  insisted  upon 
and  procured  a  note  signed  in  the  firm  name  by  such  partner,  and 
it  was  held  that  the  facts  could  be  shown  and  the  firm  made  liable 
on  the  latter  note. 

And  after  the  partner  who  made  the  note  has  paid  it  it  is  ex- 
tinguished, and  an  assignee  of  it  from  him  cannot  recover  on  the 
naked  promise  of  the  other  partner  to  pay  it.* 

In  Ostrom  v.  Jacobs,  9  Met.  454,  the  action  was  on  a  note  signed 
by  one  partner  in  his  own  name  alone,  and  evidence  that  one  of 
the  other  partners  recognized  the  note  as  a  firm  debt,  and  tried  to 
borrow  money  to  pay  it,  was  held  not  admissible  against  a  third 
partner,  unless  it  is  shown  that  he  consented  to  or  knew  this. 

1  Barcroft  v.    Snodgrass,  1    Cold.  2  gee,  also,  Hurd  v.    Haggerty,  24 

(Tenn.)  4E0;    Nichols  v.    English,    3  111.  171 ;    Davidson  v.   Kelly,  1   Md. 

Brewster  (Pa.),  260;  Siegel  v.  Chid-  492. 

sey,  28  Pa.  St.  279;  Smith  v.  Turner,  3  See,    also,  Guice  v.  Thornton,  76 

9  Bush,  417;  McCreary  v.  Van  Hook,  Ala.  466. 

35  Tex.    631 ;  Hotchkiss  V.  Ladd,  36  <  Sprague  v.  Ainsworth,  40  Vt.  47. 
Vt.  593;  43  id.  345. 

467 


§  449.  CONDUCT  OF  THE  BUSINESS. 

In  Benninger  v.  Hess,  41  Oh.  St.  6-4,  a  partner  borrowed  money, 
saying  it  was  for  the  firm,  and  two  days  afterwards  brought  his  in- 
dividual note  indorsed  in  the  firm  name.  This  was  held  not  conclu- 
sive of  notice  that  he  borrowed  for  himself  because  the  note  was 
not  delivered  until  after  the  loan  was  made. 

If  the  borrowing  partner  give  as  security  the  firm's  acceptance 
of  another's  draft,  this  is  evidence  that  the  loan  was  made  to  the 
firm.'  Especially  where  similar  prior  partnership  indorsements 
had  been  paid  by  him.* 

§449.  admissions  In  books  and  letters. —  That  the 

plaintiff  had  charged  the  goods  furnished  or  money  loaned 
on  his  books  to  the  individual  partner  is  not  conclusive  to 
exonerate  the  firm.'  And  that  the  firm  have  the  debt  en- 
tered on  their  books  as  a  liability  is  not  conclusive  against 
them  that  it  is  so.  Where  the  maker  of  the  note  is,  as  to 
the  creditor,  the  only  debtor,  the  manner  of  keeping  books 
is  not  conclusive,  though  competent  evidence,  as  an  admis- 
sion, as  is  any  evidence  that  it  was  treated  as  a  firm  debt.^ 

Letters  addressed  by  the  lender  to  the  managing  partner,  who 
had  appropriated  the  loan  to  his  own  use  personally,  do  not  show 
him  to  be  the  sole  borrower,  for  it  is  natural  to  write  to  the 
manager."  The  stub  or  counterfoil  of  the  lender's  check  book  was 
held  competent  as  evidence  that  the  credit  was  to  the  firm.  The 
check  was  payable  "  to  currency."  ^  The  books  of  the  firm  were 
held  competent  in  their  own  favor  to  show  that  the  partner  alone 
was  credited  with  the  amount  where  the  creditor  was  aware  that 
the  other  partner,  who  had  also  signed  the  note,  was  surety  only 
and  the  creditor  had  extended  the  time  without  his  consent,'  or  to 
show  that  no  entry  of  the  transaction  was  made  upon  them  of  any 
kind." 

iSaltmarsh  v.  Bower,  22  Ala.  221.  the  clerk  made  the  entry  withoni, 

2  Bank  of  Commonwealth  v.  Mud-  din^ctions. 

gett,  44  N.  Y.  514  (aff.  45  Barb.  063);  *  Tucker  v.  Peaslee,  36  N.  H.  167; 

but  see  Davis    v.   Blackwell,  5   111.  Strong  u.  Baker,  25  Minn.  442;  Wil- 

App  32.  lis  V.  Bremner,  60  Wis,  622;  Scott  v. 

s  Richardson  v.  Humphreys,  Minor  Shipherd,  3  Vt.  104. 

(Ala.),  388;  Baring  v.  Crafts,  9  Mot.  s  Stark  v.  Corey,  45  111.  431. 

380;  Braclies   v.    Anderson,    14    Mo.  ^  Id.  sedqu. 

411;  Gates    i'.  Watson,  54  Mo.  585;  ^  strong  v.  Baker,  25  Minn.  443. 

Bracken  v.  March.  4  Mo.  74,  where  ^Fosdick  y.Van  Horn,40Oh.St.459, 

468 


CONTRACTS  WITH  ONE  PARTNER.  §451. 

§  450.  contemporaneous  declarations. —  Declarations 

of  the  contracting  partner,  at  the  time  of  procuring  the 
goods  or  money,  that  it  was  for  the  use  of  the  firm,  are  com- 
petent and  cogent  evidence  that  the  credit  was  given  to  the 
firm.^ 

On  the  other  hand,  in  Mills  v.  Kerr,  32  Up.  Can.  C.  P.  68,  where 
the  pa^^ee  of  a  note  signed  in  the  firm  name  refused  to  treat  with 
the  firm,  and  declared  that  he  looked  only  to  the  partner  who  ex- 
ecuted it  and  would  have  nothing  to  do  with  the  others,  it  was  held 
that  he  could  not  rank  with  creditors  of  the  partnership  on  distri- 
bution. 

§  451.  The  individual  partner  and  Ms  sureties. —  As  be- 
tween the  contracting  partner  who  has  pledged  his  sole 
credit,  and  his  firm,  who  received  the  benefit  of  it,  such 
benefit  is  regarded  as  an  advance  by  him  to  the  firm.^ 

It  is,  of  course,  inaccurate  to  say,  as  some  of  the  cases  do,  that 
as  between  the  partners  such  partner  is  a  creditor  of  the  firm,  for 
that  depends  upon  what  a  general  balance  would  show,  and  such 
balance  may  fluctuate  daily;  hence,  a  surety  for  such  partner  who 
pays  his  note  is  not  a  creditor  of  the  firm,  for  his  principal,  the  in- 
dividual partner,  is  not  a  creditor.^  And  if  such  surety  became  such 
on  the  assurance  of  the  contracting  partner  that  it  was  a  firm  debt 
and  the  usual  way  of  signing  partnership  notes,  and  that  the  co- 
partners would  also  sign,  such  surety,  after  paying  the  debt,  is  a 

iTremper  v.  Conklin,  44  N.  Y.  58  (30  Am.  Rep.  607);  Asbury  u.  Flesher, 

(aflf.   44  Barb.  450);  Crocker,  v.  Col-  11    Mo.    610;    Moore    v.  Stevens,  6U 

well,  46  N.  Y.  213;  Smith  v.  Collins,  Miss.  809;  Tom  v.  Goodrich,  2  Johns. 

115  Mass.  388;  Benninger  v.  Hess,  41  213;  Krafts  v.  Creighton,  3  Rich.  L. 

Oh.  St.  64;  Stockwellv.  Dillingham,  273.     In  Walden    v.    Sherburne,   15 

CO  Me.  442 ;  Peterson  v.  Roach,  32  Oh.  Johns.  423,   it  was  held  that  if  the 

St.  374  (30  Am.  Rep.  607);  Mafltet  v.  debt  of  the  partner  is  a  sealed  ob- 

Leuckel,  93  Pa.  St.  468.  Declarations  ligation  for  customs  duties,  given  by 

or  admissions  of  a  partner  after  the  him  in  his  own  name  because  the 

fact  stand  on  a  d life reut|ground.  See  other  partner  was  abroad,  although 

Admissions,  §§  331-2.  had  the  surety  on  such  bond   paid  it 

2  Green    v.    Tanner,    8   Met.    411;  he  could  have  recovered  only  from 

Dewey   v.   Dewey,   35   Vt.  555,  559;  such  partner,  yet  if  he  furnishes  the 

Sprague  v.    Ainsworth,    40   Vt.    47;  partner  with   money  to   pay  it,  can 

Farmers'  Bank  v.  Bayhss,  41  Mo.  274.  hold  the  firm  for  the  loan,  since  it  is 

"Peterson  v.  Roach,  32  Oh.  St.  374  a  partnership  charge. 

469 


§  452.  CONDUCT  OF  THE  BUSINESS. 

creditor  of  the  firm;  for  the  request  of  one  partner  of  the  firm 
within  the  scope  of  the  business  is  the  request  of  the*  firm,  and  on 
the  principle  stated  in  the  preceding  section.'  So,  if  a  partner 
hire  slaves  with  the  consent  of  and  for  the  firm,  but  gives  his  own 
note,  although  the  firm  is  not  bound  by  the  note,  yet  the  consider- 
ation is  their  debt,  and  a  surety  who  pays  the  note  can  hold  thi' 
firm.*  But  a  mere  statement  of  the  contracting  partner,  to  induce 
one  to  become  surety,  that  the  firm  wanted  money  for  its  business, 
is  not  sufficient  to  control  or  vary  the  written  evidence  of  the  in- 
dividual note.' 

The  question  whether  the  contract  is  one  of  the  individ- 
ual partner  on  behalf  of  the  firm,  or  on  his  own  behalf,  is  a 
question  of  fact  for  the  jury.' 

§462.  Note  signed  by  eacli  individually. —  Allied  to  the 
preceding  subject  is  that  of  the  liability  of  the  firm  on  notes 
signed  by  each  and  all  of  the  partners  individually,  instead 
of  in  the  collective  or  firm  name.  The  importance  of  the 
question  arises  when  the  holder  of  such  note  seeks  to  rank 
with  partnership  creditors,  in  insolvency  or  in  any  distribu- 
tion of  the  assets  of  the  firm;  for,  if  he  is  a  creditor  of  the 
individual  partners  and  not  of  the  firm,  he  cannot  share 
pari  passu  with  the  creditors  of  the  firm.  It  may  also  arise 
where  a  partner,  on  buying  out  copartners,  assuiues  all  the 
liabilities  of  the  firm. 

A  note  signed  by  each  member  of  the  firm  purports,  of 
course,  on  its  face  to  be  the  note  of  a  number  of  individuals, 
and  the  mere  fact  that  a  partnership  exists  between  them 
does  not  connect  the  note  with  the  firm,  and  such  fact  alone 
is  immaterial.     Prima  facie,  therefore,  the  note  is  the  sev- 

1  McKee  V.  Hamilton,  33  Oh.  St.  7.  Johnson,   2  Pet.    186.   20O;   Poole  w. 

2  Burns  v.  Parish,  3  B.  Mon.  8;  Lewis,  75  N,  Ca.  417;  Benninger  v. 
Weaver  v.  Tapscott,  9  Leigh  (Va.),  Hess,  41  Oh.  St.  64.  Tlie  evidence  ot 
424.  a  witness  that  the  partner  contracted 

3Uhler  V.  Browning,  28  N.  J.  L.  individually  is  not  conclusivo,  for  it 
79.  is  matter  of  opinion  rather  than  ol 

< Smith  V.  Collins,  115  Mass.  388;  fact,  and  is  the  very  point  in  dis- 
Stecker  r.  Smith,  46  Mich.  14;  Bowne  pute.  Stecker  v.  Smith,  46  Mich. 
V.  Thompson,  1  N.  J.  L.  2 ;  Le  Roy  v.    14. 

470 


CONTRACTS  WITH  ONE  PARTNER.        §  453. 

eral  obligation  of  each,  whether  it  be  in  terms  joint,  or  joint 
and  several,^ 

Separate  notes  by  each  partner  for  his  portion  of  a  debt  due  by 
the  firm  are  not  partnership  habiUties/  but  the  debt  itself  remains 
a  partnership  debt.^ 

In  Hilliker  v.  Francisco,  65  Mo.  598,  a  contract  in  the  names  of 
the  individual  partners,  though  signed  in  the  firm  name,  was  held 
to  be  the  contract  of  the  individual  partners,  and  not  of  the  firm, 
and  hence  the  objection  that  a  third  partner  should  have  been  co- 
plaintiff  in  an  action  upon  it  is  not  sustainable,  nor  will  the  part- 
nership assets  be  applied  in  equity  to  pay  it. 

§  453.  May  be  shown  to  be  a  partnership  note. —  Such 
note  may,  however,  be  shown  to  be  the  note  of  the  firm  in 
certain  cases.  A  mere  intention  that  it  shall  be  a  firm  debt 
is  sufficient  inter  se,  but  this  is  not  sufficient  as  against  firm 
creditors  on  distribution,  unless  it  is  equitable  that  it  should 
be  so  by  reason  of  the  consideration  or  use  of  the  note 
having  been  for  partnership  purposes.* 

1  Re  Roddin,  6  Biss.  B77:  De  Jar-  3  Taylor  v.  Farmer  (111.),  4  N.  E. 
nette  v.  McQueen,  31  Ala.  230;  Free-  Rep.  370.  See  Gandolfo  v.  Appleton, 
man  v.  Campbell,  55  Cal.  197;  Pahl-   40  N.  Y.  533. 

manv.  Taylor,  75   111.  629;  Mack  v.  *  Ex  parte  Stone,  8  Ch.  App.  914; 

Woodruff,   87   id.  570;    Wellman    v.  i^e  Warren.  2  Ware,  332;  Trowbridge 

Southard,    30    Me.    425;    Ex  parte  u.  Cushinau,  24Pick.  310;Maynard  v. 

Weston.  12  Met.  1  (cited  in  Harmon  Fellows.  43  N.  H.  255;  Gay  v.  John- 

V.    Clark,    13   Gray,  114);    Ensign  v.  son,  45  N.  H.  587;  Kendrick  v.  Tar- 

Briggs,    6    Gray,    329;     Duunica    v.  bell,  27  Vt.  512;  Mix  v.  Shatluck,  50 

Clinkscales,  73  Mo.   500;    Buffum  v.  id.  421  (28  Am.  Rep.  511);  Berkshire 

Seaver,  16  N.  H.  160;  Turner  v.  Jay-  Woolen  Co.  v.  Juillard,  75  N.  Y.  535; 

cox,  40  N.  Y.  470  (dtc;?/m  is  explained  31  Am.  Rep.  488  (aff.  13  Hun,   506); 

in  Berkshire  Woolen  Co.  v.  Juillard,  Nelson  v.  Healey,  63  Ind.  194 ;  Spald- 

75N.  Y.  535;31  Am.  Rep.  488);Gan-  ing  u    Wilson,    80    Ky.    589,    595; 

dolfo  V.  Appleton,  40  id.  533;  Ellin-  Mitchell   v.  D'Armond,  30   La.  Ann. 

ger's  Appeal   (Pa.),  7  Atl.  Rep.  180.  P.  I,  396;  Clanton  v.  Price,  90  N.  Ca. 

And  seeMcKenna's  Appeal,  11  Phila.  96,  99;  Richardson  v.  Huggins,  23  N. 

84,  and  Dabuey  v.  Stidger,  4  Sm.  &  H.  122;  Carson  v.   Byers,  67  Iowa, 

Mar.  749;  Fowlkesu  Bowers,  11  Lea.  606;  McKee  v.  Hamilton,  33  Oh.  St. 

144;    Walsh  v.  Moser,   38  Tex.  290.  7,  12;  Turner  v.   Jaycox,    40  N.  Y. 

And  see  cases  cited  in  the  next  sec-  470;  In  re  Waldron,  98  N.  Y.  671; 

tion.  Frow,  Jacobs  &  Co.'s  Estate,  73  Pa. 

2  See  Emanuel  v.  Martin,  12  Ala.  St.  459;  In  re  Thomas,  8  Biss.  139; 
233.  17   Bankr.  Reg.  .54;  De  Jarnette  v. 

471 


§  453.  CONDUCT  OF  THE  BUSINESS. 

Where  no  firm  name  had  been  adopted,  a  note  signed  by 
each  partner  for  a  partnership  debt  binds  the  firm.^  And 
though  they  had  a  firm  name,  but  their  customary  way  of 
executing  partnership  notes  was  in  the  individual  names, 
and  the  note  in  question  was  so  intended.^  And  so  of  a 
note  or  other  instrument  signed  by  one  partner  with  the 
individual  names  of  each,  for  a  partnership  purpose,  is  the 
same  as  if  the  firm  name  were  signed.'' 

But  prosecuting  an  action  against  one  partner  alone  is  treating 
the  note  as  the  debt  of  the  partners  and  not  of  the  firm;*  and  if 
such  note  was  made  before  the  partnership  was  formed,  but  the 
avails  of  it  were  treated  as  a  partnership  fund,  it  is  a  partnership 
debt."^ 

A  note  signed  by  one  partner  and  indorsed  by  the  other,  if  for 
partnership  purposes,  may  be  treated  as  a  debt  of  the  firm.^  So  of 
a  draft  by  one  partner  on  the  other  to  pay  for  goods  bought  on 

McQueen,  31  Ala.  230,  231;  Crouch  2McKee  v.  Hamilton,  33  Oh.  St. 

V.  Bowman,  3  Humph.  209.    And  see  7,  12. 

Smith  V.  Felton,  43  N.  Y.  419;  Filley  3  Norton  v.  Seymour,  3  C.  B.  793; 

V.   Phelps,    18  Conn.  294,  and  Aga-  IG  L.  J.  C.  P.  100;  11  Jur.  312;  Hoi- 

warn   Bauk  v.   Morris,  4  Cush.    99.  den  v.  Bloxum,  35  Miss.  381 ;  Patch 

Conira,  that  a  joint  and  several  note  u  Wheatland,  8  Allen,  102;  Crouch 

signed  by  the  partners  individually  v.  Bowman,  3  Humph.  209;  McGregor 

and  by  other  makers  is  the  several  v.    Cleveland,    5     Wend.    475.     See 

note    of    each,    and    not    provable  Austin  v.  Williams,  2  Oli.  61. 

against    the  joint    estate,    Be  Hoi-  ^Page  v.   Carpenter,  10  N.  H.  77; 

brook,  2  Low.  259.     And  though  the  Gay  v.  Johnson,  45  id.  587. 

payee  refused  to  receive  the  note  in  si^e  Thomas,  17  Bankr.  Reg.  54;  8 

the  firm  name,  Kendrick  v.  Tarbell,  Biss.  139. 

27Vt.  512.  And  BO  though  made  after  6  City  Bank  of  New  Haven's  Ap- 

dissolution,  De  Jarnetteu.  McQueen,  peal   (Conn.).  7  Atl.    Rep.   548;    Ex 

31  Ala.  230.     But  compare  Ensign  v.  parte  First  Natl.  Bank,  70  Me.  3G9 ; 

Briggs,  6  Gray,  329.    Or  though  sub-  Smith    v.    Folton,    43    N.    Y.    419; 

stituted  after  dissolution  for  a  note  Thayer  u.  Smith,  116  Mass.  363.    See, 

in  the  firm  name,  this  does  not  show  also.    Booth    v.    Farmers'    &    Mech. 

an  intent  to  make  it  an  individual  Bank,    74  N.    Y.    228  (aff.  11   Hun, 

debt,  the  form  of  negotiable  paper  258),  where  four  partners  signed  the 

being  very  slight  evidence,  Maynard  note  and  the  fifth  indorsed  it;  and 

V.  Fellows,  43  N.  H.  255.     Contra,  see  Ladd  v.  Griswold,  9  111.  25  (46 

Crooker  v.  Crooker,  52  Me.  267.  Am.  Dec.  443). 

» Ex  parte  Nason,  70   Me.  363 ;  Ex 
parte  First  Natl.  Bank,  70  Me.  369. 

473 


CONTRACTS  WITH  ONE  PARTNER.  §  4oba. 

joint  account.'  So  if  the  note  for  a  partnership  debt  is  signed  by 
one  partner  as  principal  and  the  other  as  surety.' 

In  Filley  v.  Phelps,  18  Conn.  291,  three  persons  formed  a  part- 
nership in  the  livery  business  and  bought  out  a  stable,  giving  their 
joint  and  several  notes.  These  were  held  partnership  debts,  en- 
titled to  rank  on  the  joint  estate  to  the  exclusion  of  separate  cred- 
itors of  each. 

So  in  Frow,  Jacobs  &  Co.'s  Estate,  73  Pa.  St.  459,  the  joint  and 
several  obligation  of  continuing  partners,  signed  individually,  to 
the  retiring  partner,  to  pay  the  debts  and  indemnify  him,  is  inferred 
from  the  nature  of  the  transaction  to  be  a  partnership  and  not  an 
individual  obligation,  and  the  retiring  partner,  having  paid  the  un- 
paid debts,  is  entitled  to  a  dividend  from  the  assets  of  the  new  firm 
in  insolvency. 

If  the  note  was  given  for  a  purpose  not  connected  with 
the  partnership  business  it  will  be  treated  as  the  separate 
debt  of  the  individuals.^  It  was  so  held  where  the  partners 
had  signed  as  sureties,*  and  where  one  partner  made  a  loan, 
giving  his  individual  note  which  the  other  partner  also 
signed  or  indorsed.* 

§453  a. election  to  treat  it  as  separate  or  joint. —  If 

the  note  by  being  for  partnership  purposes  is  a  debt  of  the  firm,  it 
is  such  at  the  election  of  the  creditor  —  certainly  in  states  where 
separate  creditors  of  each  partner  do  not  have  a  priority  in  his  in- 
dividual assets  over  partnership  creditors  —  and  the  creditor  can 
rank  on  the  separate  or  joint  estate,  but  not  on  both.  Suing  the 
members  jointly  and  not  as  partners  is  an  election  to  treat  the  note 
as  a  separate  debt,  for  as  the  note  does  not  appear  to  be  a  partner- 
ship act,  it  must  be  declared  on  as  such  to  hold  the  firm.® 

A  note  signed  both  in  the  individual  names  and  in  the  firm's 

i  Addison  v.  Burckrayer,  4  Sandf.       ^Re  Bucyrus  Machine  Co.  5Bankr. 

Ch.  498.  Reg.  303;  Drake  v.  Taylor,  6  Blatch. 

2PoIlard  V.  Stanton,  5  Ala.  451.  14;  Ex  parte  Stone,  L.  R.  8  Ch.  App. 

•Forsyth  V.  Woods,  11  Wall.  484.  914;  Maynard  v.  Fellows,  43  N.  H. 

♦Spalding  v.  Wilson,  80  Ky.  589,  255;    Page  v.  Carpenter,   10  id.  77; 

595 ;  Ex  parte  Weston,  12  Met.  1.  Ex  parte  First  NatT  Bank,  70  Me. 

•  Pahlman  v.  Taylor,   75  111.    629;  369.      Compare    Agawam    Bauk    v. 

lill  V.  Egan,   89  111.  609 ;   Burns  v.  Morris,  4  Cush.  99. 
Mason,  11  Mo.  469. 

473 


§  453a.  CONDUCT  OF  THE  BUSINESS. 

name  may  be  held  both  ways.  If  the  creditor  can  get  the  addi- 
tional security  he  is  is  entitled  to  it.' 

In  Donley  v.  Bank,  40  Oh.  St.  47,  51,  a  note  signed  in  the  firm 
name  was  indorsed  by  the  partners  individually,  and  it  was  said 
that  generally  such  double  execution  was  to  dispense  with  proof 
of  the  membership  of  the  firm;  bat  it  was  also  said  that  the  indi- 
viduals are  sureties  for  the  firm. 

But  in  Taten  v.  Ryan,  1  Spears  (S.  Ca.),  240,'  one  of  the  part- 
ners indorsed  his  individual  name  on  the  firm's  note,  and  it  was 
held  that  he  was  not  chargeable,  either  as  iudorser  or  maker;  that 
nothing  was  thereby  added  to  his  liability. 

Where  a  bill  is  drawn  on  a  firm  and  is  accepted  in  the  firm  name 
by  a  partner  who  adds  his  individual  name  underneath,  no  separate 
liability  is  created  thereby.^ 

No  agreement  can  be  inferred  from  signing  a  note  for  a  partner- 
ship debt  individually,  that  the  parties  are  to  contribute  to  each 
other,  but  the  usual  rule  that  one  cannot  sue  the  other  at  law  for  a 
firm  matter  applies.'* 

A  letter  thus:  "  We  hereby  guaranty,"  signed  in  the  firm  name 
and  also  by  each  partner,  was  held  to  be  the  contract  of  the  firm 
and  of  each  partner  separately.* 

iFowlkea  v.  Bowers,  11  Lea,  144;  SiJe  Barnard,  33  Ch.  D.  447;  Mal- 
ice Farnum,  6  Law  Rep.  21 ;  Re  colmson  v.  Malcolmson,  1  Irish  L.  R. 
Bradley,  2  Biss.  515;  Re  Adams,  29  Ch.  D.  228. 

Fed.    Rep,    843;   National    Bank    v.  <  De  Jarnette  v.  McQueen,  31  Ala. 

Bank  of  Commerce,  91  111.  271.  230,  232;  Booth  v.  Farmers'  &  Mech. 

2iJe    Blumer,    13  Fed.    Rep.    622;  Bank,  74  N.  Y..228  (aff.  11  Ilun,  258). 

Fayette  Nat'l  B'k  v.  Kenney,  79  Ky.  And  see  Kendrick   v.  Tarbeil,  27  Vt. 

133.     And   see  Stevens  v.    West,     1  512. 

How.  (Miss.)  308.  ^  Ex  parte  Harding,  12  Ch.  D.  557. 

474 


CHAPTER  IX. 

DEGREE  OF  LIABILITY  ON  CONTRACTS. 

§  454.  Contracts  are  joint,  and  not  joint  and  several. —  In 

the  eye  of  the  law,  as  distinguished  from  equity,  partner- 
ship contracts  are  considered  to  be  joint;  but  it  is  often  said 
that  in  equity  they  are  joint  and  several,  and  it  is  certainly 
true  that  death  does  not  in  equity  release  the  estate  of  the 
deceased  partner  from  liability,  and,  in  this  sense,  the  con- 
tract is  in  equity  deemed  to  be  joint  and  several;  but  it 
seems  not  in  any  other  sense,  either  to  permit  a  set-off  in 
equity  of  partnership  and  individual  debts  or  otherwise;  and 
the  latest  expression  of  eminent  English  judges  is  that  the 
phrase  partnership  debts  are  in  equity  joint  and  several  is 
not  to  be  understood  in  the  proper  and  technical  sense  of 
the  words,  but  refers  only  to  the  remedy  and  not  the  nature 
of  the  debt.^ 

iSee  the  opinions  of  Lord  Cairns,    v.  Graham,  46  Miss.  425,  427  (but  see 

Lord  Hatherley,  Lord  O'Hagan  and    Keerl  v.    Bridgers,   10  Sm.  &  Mar. 

Lord  Selborne  in  Kendalls.  Hamil-   612);  Bowen  v.  Crow,   16  Neb.  556; 

ton,  L.  R.  4App.  Cas.  504;  s.  C.  3  C.    Tinkum  v.  O'Neale,  5  Nev.  93;  Cur- 

P.    D.   403.     And  see   Beresford   v.    tis  v.  Hollingshead,  14  N.  J.  L.  402, 

Bi owning,  L.  R.  20  Eq.  564,  573,  577,    409;  Marvin  v.  Wilber,  52  N.  Y.  270; 

where  the  doctrine  of  joint  and  sev-   Cowdin  v.  Hurford,  4  Oh.  132;  Weil 

eral  liability  was  affirmed  as  to  com-   v.  Guerin,  42  Oh.  St.  299,  802;  Kamni 

mercial   firms,    but   the   M.   R.    was    v.  Harker,   3   Oreg.   208;  Wiesenfeld 

non-committal  as  to  any  other  part-   v.  Byrd,  17  S.  Ca.  lOG,  112-14;  Davis 

nerships.      That    partnersliip     con-    v.  "Willis,  47  Tex.  154;  Washburn  v. 

tracts  are  at  law  joint  only  was  held    Bank  of  Bellows  Fulls,   19  Vt,  278, 

in  Harrison  v.  McCormick,  69  Cal.    288.     As  a  consequence,  all  the  part- 

616;  Currey  v.  Warrington,  5  Harr.    ners  must  sue  and  be  sued,  and  the 

(Del.)   147;  Wiley  v.   Sledge,    8  Ga.    property  of  one  cannot  be  attached 

532;  Thornton  v.  Bussey,  27  id.  302;    if  he   is  a  non-resident,  as  will  be 

Crosby   v.  Jeroloman,    37   Ind.    264;    elsewhere  shown.   In  Strong  u.  Niles, 

Boorum  v.  Ray,  72  id.  151;  Scott  v.    45  Conn.  52,  a  firm  of  four  dissolved, 

Colmesnil,  7  J.   J.    Mar.   416;  Will-   three  of  them  forming  a  new  part- 

iams  V.  Rogers,  14   Bush,  776 ;  Irby    nership    and   employing  the  formey 

475 


g  455.  CONDUCT  OF  THE  BUSINESS. 

In  law  a  partnership  contract  is  several  to  the  extent  that  if  a 
single  partner  or  a  number  less  than  all  are  sued  and  do  not  plead 
non-joinder  of  the  others,  a  recovery  against  him  or  them  alone 
may  be  had.' 

We  have  already  seen  that  a  partner  is  agent  for  all,  and  not  for 
each,  and  cannot  therefore,  without  special  authority,  make  joint 
and  several  contracts;  but  if  he  does  so,  he  is  severally  liable  upon 
them  and  the  firm  jointly  only. 

§  455.  Ijiter  se. —  The  balance  owed  b}'  debtor  partners  to  a 
creditor  partner  on  final  accounting  is  owed  by  them  each  for  his 
own  amount,  and  a  decree  against  them  jointly  is  erroneous;*  ex- 
cept where  they  have  in  bad  faith  excluded  him  from  participatio)i 
in  the  business  and  profits,  and  from  knowledge  of  the  books,  in 
which  case  they  have  been  held  jointly  and  severally  liable  for  his 
final  balance;"  or  used  the  assets  to  pay  the  debts  of  their  former 
firm,  of  which  he  was  not  a  member;'*  or  where  surviving  partners 

book-keeper,  who  transferred  to  his  Woodworth  v.  Spafford,  2  McLean, 

own  account  in  the  new  firm  a  bal-  168.     Lord  Mansfield's  dic^(«/rt  in  Rice 

ance  due  him  by  the  old  for  salary,  v.  Shute,  5  Burr.  2G11,  tliat  it  is  Joint 

The  new  firm  afterwards  paid  him  and  several,  means  so  only  to  the 

their  account  without  knowing  that  above  extent. 

it  consisted  in  part  of  the  debt  of  the  2Starr  v.  Case,  59  Iowa,  491  ;Rhiner 
old  firm.  The  i)ayment  was  partly  v.  Sweet,  3  Lans.  886 ;  Portsmouth  r. 
in  cash  and  partly  by  a  note.  In  an  Donaldson,  82  Pa.  St.  202;  Raiguel's 
action  by  him  on  the  note  the  de-  Appeal,  80  Pa.  St.  234,  250;  9  Phila. 
fendants  attempted  to  offset  the  275.  And  so  where  two  partners  buy 
cash,  but  it  was  held  that  the  plaint-  out  the  interest  of  a  third,  signing  in 
iff  could  retain  the  cash  payment,  their  individual  capacities,  each  is 
The  court  say  this  is  because  they  liable  for  half,  and  not  in  soUdo. 
are  jointly  and  severally  liable.  Lush  v,  Graham,  21  La.  Ann.  159. 
which  is  not  true.  In  fact,  tlic  as-  Unless  by  the  agreement  of  dissolu- 
Bets  of  the  new  firm  were  thus  ap-  tion,  the  continuing  partners  have 
plied  to  discharge  a  debt  of  the  part-  jointly  covenanted  with  the  retiring 
ners  as  individuals  and  not  a  firm  partner,  a'bd  he  stands  on  the  cove- 
debt.  The  word  joint,  in  the  sense  nant.  Wilmer  v.  Currev,  2  DeG.  & 
tliat  death  released  one  of  the  joint  Sm.  347;  Beresford  v.  Browning,  1 
promisors  entirely  so  that  his  estate  Ch.  D.  30,  wliero  the  covenant  was 
was  liable  neitlier  to  the  creditor  nor  held  to  be  joint  and  several, 
to  contribute  to  payments  by  the  3  Bloomfiild  v.  Buchanan,  14  Ore- 
survivors,  is  perliaps  nearly  obsolete  gon,  181;  Allison  u.  Davidson,  2  Dev. 
except  in  so  far  as    it  affects  the  Eq.  79. 

remedy.  nVentworth  v.  Raiguel,  9  Phila, 

iMason  V.  Eldred,  6WalI.  231,  235;  275;    Raiguel's  Appeal,  80    Pa.    St. 

Barry    v.    Foyles,    1    Pet.  311,  317;  234, 

470 


DEGREE  OF  LIABILITY  ON  CONTRACTS. 


§457. 


have  divided  up  the  assets  among  themselves,  they  are  jointly  liable 
to  the  executor  for  the  decedent's  share.' 

§  456.  Contra  by  statute. — The  statutes  of  several  states 
have,  however,  made  joint  debts  joint  and  several,  and  this  applies 
to  partnerships.  Such  are  the  statutes  of  Alabama,  Arkansas, 
Colorado,  Georgia,  Iowa,  Illinois,  Kansas,  Kentucky,  Missis- 
sippi, Missouri,  Montana,  New  Jersey,  New  Mexico,  North 
Carolina  and  Tennessee.* 

A  statute  that  contracts  by  several  persons  shall  be  joint  and 
several  does  not  apply  to  partnerships.' 

When  such  a  statute  is  in  force,  an  action  on  a  foreign  judgment 
rendered  against  partners  need  not  be  brought  against  them  all.^ 

§  457.  In  solido. —  Each  partner  is  liable  in  solido  for  all 
debts  of  the  firm.  This  does  not  mean  that  one  partner  can 
be  sued  alone,  which  depends  upon  whether  the  liability  is 
joint  or  several,  but  means  that  the  entire  fortune  of  each 
partner,  not  only  that  embarked  in  the  business,  but  what- 
ever he  may  own,  is  liable  to  make  good  the  firm's  debts, 
whether  the  other  partners  are  able  to  contribute  or  not; 
and  regardless  of  the  amount  or  proportion  of  his  interest 
in  the  firm,  whether  it  be  large  or  small,  the  consequence  is 
the  same.* 


'Currey  v.    Warrington,    5  Harr. 
(Del.)  147;  Kamm  v.  Barker,  SOreg. 


iBundy  v.  Youmans,  44  Mich.  376; 
Birdsall  v.  Bemiss,  2  La.  Ann,  449. 

2  See  Conklin  v.  Harris,  5  Ala.  213;  208, 
Travis  v.  Tartt,  8  id.  574;  Pearce  v.  ^Bellerville  Sav,   Bk,  v.  Winslow, 
Shorter,  50  id.  318 ;  Hall  v.  Cook,  69  30  Fed.  Rep.  488. 
id.  87; Hamilton?;.  Buxton,  6  Ark.  24;  5 gee,  for  example.  Rice  v.  Shute, 
Burgen  u  Dwinal,  11  id,   314;  Kent  5  Burr.  2611;  Abbott'.  Smith,  2  Wra 
V.   Walker,   21   id.    411;    Cannon  v.  Bl,  947;  Wright  v.  Hunter,   1  East 
Dunlap,    64    Ga,    680;    Williams  v.  20;  Doddington  v.  Hallet,  1  Ves,  Sr, 
Muterbaugh,  29  Kan.  730;  Wright  v.  497;  Rex  v.  Dodd,  9  East,  516;  Sal 
Swayne,  5  B.  Mon.  441 ;  Williams  v.  toun  v.   Honstoun,  1  Bing.  433,  444 
Rogers,  14  Bush,  776;  Nutt  u.  Hunt,  Medberry    v.    Soper,    17    Kan.  369 
4  Sm.  &  Mar.  702 ;  Miller  u.  Northern  Benchley  v.  Chapin,   10  Cush,  173 
Bank,  34  Miss.  412;  Wilson  v.  Home,  Morrell  v.  Trenton  Mut.  L.  &  F,  Ins 
37  id.  477;  Griffin  v.  Samuel,  6  Mo.  Co.  10  Cush.  282;  57  Am.  Dec.  92 
30;  Putnam  r.  Ross,  55  id.  116;  Gates  Hanson  v.  Paige,  3   Gray,  239,   243 
V.  Watson,  54  id,  585,  595;  Simpson  Collins  v.  Charlestown  Mut,  F.  Ins 
V.   Schulte,  21  Mo,  App,  639;  Logan  Co,   10  Gray,    155;  Nebraska  R.    R 
V.   Wells,    76  N.    Ca.    416;  Gratz   v.  Co.   r.  Colt,  8  Neb.  251;    Judd  Lin- 
Stump,  Cooke  (Tenn.),  493,  496.  seed  &  Sperm  Oil  Co.  v.  Hubbell,  76 

477 


§  469  CONDUCT  OF  THE  BUSINESS. 

Hence  a  creditor  of  the  firm  lias  an  insurable  interest  in  the  life 
of  one  of  the  partners,  although  the  other  is  solvent.^  And  hence 
if  one  partner  becomes  assignee  in  insolvency  of  a  creditor  of  the 
firm,  he  must  charge  himself  in  the  account  with  the  full  amount 
of  the  debt  and  not  with  the  proceeds  merely  of  a  sale  of  it.  Thus, 
in  Benchloy  v.  Chapin,  10  Cush.  173,  where  B.,  of  B.  &  J.,  a  firm, 
became  assignee  in  insolvency  of  one  L.,  and  among  the  assets  of  L. 
was  a  note  and  mortgage  made  by  B.  &  J.,  and  B.,  as  such  assignee, 
sold  the  note  at  auction,  and  it  was  bought  for  half  its  amount,  and 
he  charged  himself  with  the  proceeds  in  his  account,  it  was  held  that 
he  must  charge  himself  with  the  whole  amount.  For  as  partner  of 
B.  &  J.  he  is  liable  in  snlido  for  its  debts;  therefore  it  is  his  own 
debt.  The  person  to  whom  he  sold  is  entitled  to  collect  the  whole, 
therefore  the  creditors  would  lose  one-half,  if  this  sale  is  allowed, 
and  that,  too,  through  the  default  of  the  person  who  should  protect 
their  rights.  Hence,  also,  the  lien  of  a  corporation  on  stock  in  the 
name  of  a  person  will  secure  debts  owing  to  it  by  his  firm  as  well 
as  by  himself.''  And,  as  we  shall  see,  a  judgment  creditor  of  the 
firm  can  levy  execution  for  the  entire  debt  upon  the  property  of 
any  of  the  partners. 

§  458.  Joint  stock  companies. —  This  doctrine  of  unlimited 
liability  applies  also  to  all  unincorporated  joint  stock  com- 
panies as  well  as  to  ordinary  partnerships.' 

§  451).  Limited  by  contract. —  There  is  no  reason  why  the 
liability  may  not  be  limited,  if  so  agreed  by  all  parties,  in- 

N.  Y.  543;  Allen  v.  Owens,  2  Spears  i  Moirell  v.  Trenton  Mnt.  L.  &  F. 

(S.  Ca.),  170.    In  Louisiana,  however,  Ins.  Co.  10  Cush.  282;  57  Am.  Dec. 

partners  in  commercial  partnerships  92. 

are  liable  in  solido.  Villa  v.  Jonte,  ^Re  Bigelow,  1  Banki*.  Reg.  6G7. 
17  La.  Ann.  9;  Gumhel  v.  Abrams,  SLindley  on  Partnership,  p.  37R. 
20  id.  508.  But  in  onlinary  partner-  See,  also,  Ilnrlgson  v.  Baldwin,  65  111. 
ships  each  is  liable  only  for  his  share.  532;  Greenup  i\  Barbtv,  1  Bibb,  320; 
Jones  u.  Caperton,  15  La.  Ann.  475;  Wright  v.  Swayne,  5  B.  Mon.  441; 
Hyams  u.  Rogers,  24  id.  230;  Payne  Robinson  v.  Robinson,  10  Me.  240; 
V.  James,  36  La.  Ann.  476,  a  plant-  Frost  v.  Walker,  60  id,  468;  Hess  r. 
ing  partnership;  Hardeman  u.  Tab-  Werts,  4  S.  &  R.  148;  Whitman  v. 
ler,  36  La.  Ann.  555,  a  partnership  Porter,  107  Mass.  522,  524;  Cutler  v. 
to  construct  a  railroad.  But  may  Thomas,  25  Vt.  73;  First  Nat.  Bank 
become  liable  in  solido  by  special  v.  Gofl,  31  Wis.  77;  Coleman  v.  Bell- 
contract,  Payne  v.  James,  30  La.  house,  9  Up.  Can.  C.  P.  31. 
Ann.  476. 

478 


DEGREE  OF  LIABILITY  ON  CONTRACTS.  §  400. 

eluding  the  creditor.  A  provision  in  the  articles  that  one 
partner  shall  not  be  generally  liable  for  losses  will  be  of  no 
effect  as  to  creditors  who  did  not  have  notice  of  this  pro- 
vision at  the  time  of  contracting. - 

And  that  the  partner  whose  liability  is  attempted  to  be  limited 
is  a  dormant  partner  does  not  relieve  him.^  The  stipulation  is 
valid  inter  se,  and  the  partner  who  is  not  to  share  losses  may  r;^- 
quire  reimbursement  if  compelled  to  pay.*  And  the  burden  to 
prove  notice  of  the  restriction  is  upon  the  partner  who  claimj  it. 
And  a  particular  creditor  may  agree  with  one  partner  not  to  hold 
him  liable  for  the  debt.* 

§  4:00.  statutory;  limited  partnersliips.— There  is  a  stat- 
utory form  of  partnership  based  on  a  limited  liability,  called  limited 
partnership,  provided  for  by  statute  in  Upper  Canada  or  On- 
tario, and  the  District  of  Columbia,  and  in  all  the  states  of  the 
Union,  and  in  all  the  organized  territories  except  Arizona,  Idaho 
and  New  Mexico,^  in  which  some  of  the  partners,  called  special, 
risk  merely  their  capital,  and  the  others,  called  general,  incur  an 
unlimited  liability.  Limited  partnerships  arose  in  Italy  in  the  early 
middle  ages,  and  are  much  in  vogue  in  the  continental  European 
countries.  They  were  first  introduced  here  in  New  York,  but  in 
this  country  they  diflFer  from  the  European  system  in  the  great 
strictness  with  which  statutory  requiremeuts  of  paying  in  the  cap- 
ital, recording,  advertising  and  non-interference  of  the  special  part- 
ner and  suppression  of  his  name  must  be  observed,  for  the  special 
partner  is  not  allowed  to  take  any  part  in  the  management  of  the 
business,  lest  an  appearance  of  being  a  general  partner  be  held  out. 

1  Ala.  Fertilizer  Co.  v.  Reynolds,  79  270;  Gillan  v.  Morrison,  1  DeG.  «&  S. 

Ala.  497 ;  Phillips  v.  Nash,  47  Ga.  218;  431. 

Saufley    v.    Howard,    7   Daua,    307;  *  Batty  u.  McCundie,  3  C.  &  P.  20;J ; 

Williams  v.  Rogers,   14  Bush,  77G;  Cannop  v.  Levy,   11  Q.  B.  769.     See 

Perry  v.  Randolph,  6  Sm.  &  Mar.  335 ;  Hart's  Case,  1  Ch.  D.  307.  It  has  been 

Lynch  v.  Thompson,    61   Miss.  354;  held   that  a  person  dealing   witli  a 

Coleman  v.  Bellhouse,  9  Up.  Can.  C.  joint  stock  company  of  a  kind  where 

P.  31.                        •  unlimited  liability  is  generally  stipu- 

zPhiUip*  V.  Nash,  47  Ga.  218.      See  lated  against,  is  affected  with  notice 

Winsbip  v.   U.    S.   Bank,    5  Peters,  of  such  custom,  but  this  doctrine  is 

r29.  not  favorably  regarded. 

5  Geddes  v.  Wallace,  2  Bligh's  Rep  ^  Alaska  and  the  Indian  Territory 

not  being  organized. 
479 


§  ICO.  CONDUCT  OF  THE  BUSINESS. 

There  is  also  another  form  of  limited  association  permitted  by  stat- 
ute in  Michigan,  New  Jersey,  Ohio,  Pennsylvania  and  Virginia, 
wherein  all  the  partners  are  special,  governed  by  managers,  and 
the  name  of  which  must  be  followed  by  the  word  "  limited."  There 
is  a  large  body  of  law  relating  to  these  various  limited  partnerships, 
which  has  been  made  the  subject  of  a  separate  treatise  by  the 
author  of  this  work. 

480 


CHAPTER  X. 

LIABILITY  FOR  TORTS. 

§  461.  Each  partner  being  the  agent  of  the  firm,  the  firm 
is  Hable  for  his  torts  committed  within  the  scope  of  his 
agency,  on  the  principle  of  respondeat  superior,  in  the  same 
way  that  a  master  is  responsible  for  his  servant's  torts,  and 
for  the  same  reason  the  firm  is  liable  for  the  torts  of  its 
agents  or  servants.  On  the  other  hand,  if  the  tort  was  not 
committed  in  the  prosecution  of  the  joint  business  or  within 
its  scope,  the  mere  relation  of  partners  does  not  make  the 
conduct  of  the  individual  imputable  to  the  firm,  unless  it 
was  authorized  by  the  copartners. 

The  test  is  often  laid  down  that  partners  are  not  liable  for  each 
others'  wilful  torts.  Many  of  the  cases  in  this  chapter  are  entirely 
inconsistent  with  such  a  distinction,  unless  wilful  is  strained  into 
the  meaning  of  outside  the  scope  of  business.  If  the  partner  goes 
out  of  his  way  to  commit  the  tort,  whether  wilful  or  not,  the  other 
partners  are  not  liable  for  it.' 

The  effect  of  subsequent  approval,  and  the  consequences  if  the 
innocent  partners  get  the  benefit  of  the  act,  knowingly  or  not,  will 
be  herealter  considered. 

§  462,  Illustrations— In  Moreton  v.  Hardern,  4  B.  &  C.  223; 
6  Dow.  &  Ry.  275,  all  members  of  a  firm  of  stage-coach  propri- 
etors are  liable  to  an  action  on  the  case  for  the  negligent  driving 
of  one  who  ran  iuto  the  plaintiff  and  broke  his  leg.  Trespass 
would  have  lain  against  the  negligent  partner,  but  not  against  the 
innocent  ones.  So  for  injury  to  a  passenger  by  one  owner  of  a  line 
of  coaches.*  Where  one  of  a  firm  of  common  carriers  took  freight 
to  be  put  off  at  a  particular  place  and  the  boat  neglected  to  stop 

1  Pollock's  Dig.  of  Partn.  art.  24.  2  Champion  v.  Bostwick,  18  Weod. 

175  (31  Am.  Dec.  376). 
Vol.  1  —  31  481 


§  4G2.  CONDUCT  OF  THE  BUSINESS. 

there,  it  was  urged  that  he  had  no  right  to  so  agree,  but  the  act 
being  within  the  apparent  scope  of  the  business  all  were  held 
liable.' 

In  Fleteher  v.  Ingram,  46  Wis.  191,  plaintiff's  property  in  the 
custody  of  another  was  attached  as  the  property  of  third  persons 
and  bought  in  by  the  custodian  and  sold  by  him  to  a  member  of 
the  defendant's  firm  and  paid  for  out  of  their  funds  and  resold  by 
the  firm;  all  the  partners  are  liable  for  the  conversion.  If  a  part- 
ner borrows  a  horse  to  be  used  in  the  partnership  business,  and  by 
negligence  loses  him,  the  firm  is  liable.*  So  if  one  partner  put 
property  hired  for  the  use  of  the  firm  to  a  use  not  stipulated,  both 
are  liable.^  Or  tore  out  inside  partitions  of  leased  property  for  the 
benefit  of  the  firm."*  Where  one  partner  knew  that  certain  lumber 
was  made  by  a  trespasser  out  of  timber  belonging  to  the  plaintiff, 
the  firm  having  bought  and  received  them  from  the  trespasser  is 
liable  for  conversion." 

In  Gwynn  v.  Duffield,  QQ  Iowa,  708,  one  member  of  a  firm  of 
apothecaries  negligently  permitted  the  plaintiff  to  help  himself 
to  a  dose  of  medicine,  without  paying  for  it,  and  by  mistake 
plaintiff  took  a  poison  and  became  sick.  The  copartner  was 
held  not  liable,  on  the  ground  that  giving  away  medicines  was  not 
part  of  the  firm's  business.  But  the  tort  of  a  partner  of  one  firm 
is  no  defense  to  an  action  by  another  firm,  in  which  there  is  a 
partner  common  to  both  firms.  Thus  where  the  plaintiffs,  part- 
ners, sued  a  railroad  company  for  neglect  to  receive  and  carry  their 
grain,  the  fact  that  another  firm,  of  which  one  of  the  plaintiffs  was 

1  Heirn  v.  McCaughan,  32  Miss.  17.  Co.  to  cure  pork  for  the  Confederate 

2Witcher  v.  Brewer,  49  .4.1a.  119.  troops,  and  on  the  retreat  of  the  lat- 

'Myei's  V.  Gilbert,  18  Ala.  467.  ter  burned  down  the  establishment 

<  Brewing  v.    Berryman,    15   New  to  prevent  its  falling  into  the  hands 

Brunswick,  515.  of    the  Union  army.     It  was  held 

*  Tucker  V.  Cole,  54  Wis.  539;  Ger-  that  Bruce  was  a  co-trespasser  with 

hardt  v.  Swaty,  57  id.  24.     In  Lucas  the  Confederate  general,  and  he  and 

V,    Bruce   (Louisville    Chancery   Ct.  his  non-resident  partners,  who  were 

1864),  4  Am.  Law  Reg.  (N.  S.)  95,  a  innocent  of  the  matter,  further  than 

Confederate  general  took  possession  that  they  had   formed  the  firm  to 

of  a  town  where  Lucas'  pork  pack-  make  money  out  of  the  Confeder- 

ing  establishment  was,  and,  at  the  ates,  were  liable  to  Lucas,  altliough 

instigation  of  Bruce,  compelled  Lu-  Lucas,  had  he  remained,  would  have 

cas  to  rent  the  premises  to  Bruce  &  also  furnished  pork  to  them, 

482 


LIABILITY  FOR  TORTS.  §  465. 

a  member,  had  by  its  neglect  to  receive  its  grain  blockaded  tbe  rail- 
road, is  no  defense.' 

§  403.  Negligence  of  servants. —  A  partnership  is  liable 
for  the  negligence  of  one  of  its  servants  acting  within  the 
scope  of  his  employment.^ 

In  Linton  v.  Hurley,  14  Gray,  191,  the  defendants  were  partners 
as  stevedores,  and  while  oue  partner  was  unloading  a  vessel,  in  the 
absence  of  the  other,  the  plaintiff's  leg  was  broken,  through  the 
nesliffence  of  servants  acting  under  him.  It  was  contended  that 
the  absent  partner  was  not  liable.  But  it  was  held  that  the  firm 
was  liable  for  injuries  by  negligence  of  servants  employed  by  both 
or  by  one  of  the  defendants,  while  acting  within  the  scope  of  the 
partnership  and  transacting  the  business  of  the  firm. 

Even  where  the  servant  is  employed  and  paid  exclusively  by  one 
partner  who  has  sole  charge  of  a  branch  of  the  partnership  busi- 
ness, as  a  section  of  a  line  of  coaches,  the  copartners  are  liable.* 

§  4(>4.  Scope  of  authority. —  The  great  difficulty  is  to  de- 
termine whether  the  tort  was  committed  within  the  scope 
of  the  partner's  representative  authority.  Upon  this  it  may- 
be said  generally  that  all  the  partners  are  liable,  if  they 
would  be  liable  had  the  same  act  been  committed  by  an  agent 
intrusted  with  the  management  of  its  business.  Where  one 
partner  purchases  goods  with  the  fraudulent  intention  of 
not  paying  for  them,  the  other,  who  was  ignorant  of  the  in- 
tent, is  liable  only  on  contract,  and  not  for  the  fraud.* 

§  465.  in  collecting  debts. —  Where  a  partner  is  en- 
gaged in  collecting  a  debt  due  to  the  firm  by  the  usual 
methods,  legal  process,  and  in  so  doing  commits  or  author- 
izes the  commission  of  a  tort  in  regard  to  the  subjection  of 
property  to  the  debt,  he  is  deemed  to  be  acting  within  the 
scope  of  his  agency,  and  the  firm  is  liable. 

In  Loomis  v.  Barker,  69  111.  360,  a  firm  of  three  persons,  having 
got  judgment  against  a  person,  one  of  the  partners  caused  execu- 

1  Cobb  V.  I.  C.  R.  R.  Co.  38  Iowa,  601.        3  Champion  v.  Bostwick,  18  Wend. 

2St:.bles  V.   Eley,  1   C.  &  P.  614;    175  (31  Am.   Dec.   376);   Laugher  v. 
Bowas  V.  Pioneer  Tow  Line,  2  Sawy.    Pointer,  5  B.  &  C.  547,  570. 
21 ;  White  v.  Smith,  12  Rich.  L.  595;       *  Stewart  v.  Levy,  36  Cal.  159. 
Woodu  Luscomb,  23  Wis.  287. 

483 


§  4G5.  CONDUCT  OF  THE  BUSINESS. 

tion  to  be  levied  upon  property  in  the  debtor's  hands,  which  be- 
longed to  a  third  person;  the  property  Avas  sold,  and  the  firm  got 
the  proceeds.  It  was  held  that  the  plaintiff  was  entitled  to  recover 
against  the  firm.  The  judgment  was  put  not  on  the  ground  that 
the  firm  received  the  benefit,  in  which  case  they  would  have  been 
exonerated  had  the  partner  appropriated  the  proceeds,  but  on  the 
ground  that  a  tort  had  been  committed  in  the  course  of  business.' 

In  Harvey  v.  Adams,  32  Mich.  472,  an  execution  in  favor  of  a 
firm  was  levied,  with  the  assent  of  one  partner,  upon  property  upon 
which  the  plaintiff  had  chattel  mortgages,  in  disregard  of  the  mort- 
gages, and  with  knowledge  of  them.  It  was  held  that  the  firm  was 
liable  for  the  sheriff's  acts,  authorized  by  one  partner,  in  collecting 
a  debt,  and  that  the  firm  who  desired  to  get  the  benefit  of  the  act, 
if  justified,  could  not  repudiate  it  if  tortious. 

Rolfe  V.  Dudlej',  58  Mich.  208,  held  that  if  one  member  of  a  cred- 
itor firm  received  property  on  a  void  judgment,  and  refused  to  give 
it  up,  and  the  other  member  referred  the  owner  to  the  former,  both 
were  liable;  and  it  was  said  that  whatever  one  did  in  the  collection 
of  a  debt  was  presumed  to  be  with  the  assent  of  the  other. 

In  Kulin  V.  Weil,  73  Mo.  213,  all  the  partners  were  held  liable 
for  a  wrongful  attachment  by  one  partner  in  an  action  in  the  name 
of  the  firm  to  collect  a  debt;  and  the  same  ruling  was  made  in  Gur- 
ler  V.  Wood,  16  N.  H.  539,  where  it  was  added  that  any  doubt  of 
the  liability  of  the  others,  arising  from  their  non-concurrence,  was 
removed  by  the  application  of  the  proceeds  of  sale  to  the  benefit  of 
the  firm. 

In  Taylor  v.  Jones,  42  N.  H.  25,  however,  the  sheriff  levied  upon 
goods  marked  with  the  debtor's  name,  but,  in  fact,  belonging  to  a 
third  person,  who  demanded  them  of  one  partner.  The  latter's 
neglect  or  refusal  to  give  them  up  was  held  not  to  make  the  co- 
partner liable  merely  because  he  was  partner,  but  that  the  question 
whether  the  other  was  acting  in  the  proper  scope  and  business  of 
the  partnership  must  be  left  to  the  jury.  The  tort  here  was  not  in 
the  levy,  but  in  the  refusal  to  release. 

In  Durant  v.  Rogers,  71  111.  121,  one  partner  caused  the  seizing 
of  the  property  of  another  person  for  a  debt  due  the  firm,  and  being 
sued  alone  on  the  appeal  bond,  his  surety  had  to  pay;  it  was  held 

1  s.  p.  Chambers  v.  Clearwater,  1  Keyes,  310 ;  1  Abb.  App.  Dec.  341  (affg. 
41  Barb.  200). 

484 


LIABILITY  FOR  TORTS.  §  466. 

that  tlie  surety  could  not  recover.  But  in  s.  c,  87  111.  503,  it  hav- 
ing appeared  that  the  firm  had  received  the  avails  of  the  property, 
thereby  increasing  its  assets,  the  other  partners  were  held  liable. 

In  McClure  v.  Hill,  36  Ark.  268,  a  debtor  of  a  firm  mortgaged 
his  horse  to  the  firm  as  security;  on  default  one  partner  took  the 
horse  illegally  by  force  or  fraud.  It  was  held  that  both  were  liable, 
the  trespass  being  committed  in  the  course  of  the  business.  In  this 
case  the  firm  got  the  benefit  of  the  act,  for  the  other  partner  know- 
ingly participated  in  its  fruits. 

Each  partner  in  eJBFecting  a  compromise  of  their  debts  is  the  agent 
of  the  firm,  and  any  dishonest  act  or  misrepresentation  in  carrying 
out  the  agreement  avoids  it  as  to  both.' 

In  Mcllroy  v.  Adams,  32  Ark.  315,  a  note  belonging  to  a  third 
person  came  into  the  hands  of  a  member  of  a  firm  of  brokers  and 
bankers,  and  he  sued  the  makers  of  it  in  the  firm  name  without 
knowledge  of  his  copartners,  and,  by  swearing  that  the  firm  owned 
the  note,  deprived  the  makers  of  a  good  defense  available  to  them 
against  the  real  owner,  and  levied  execution  upon  the  maker's  prop- 
erty, greatly  injuring  it.  The  innocent  partner  was  held  liable  for 
the  injury  caused  by  the  unauthorized  act.  It  is,  however,  difficult 
to  see  how  the  use  of  the  firm  name  for  the  convenience  of  another 
can  be  within  the  scope  of  the  business. 

§  466.  But  whatever  be  the  extent  of  implied  authority  in 
collecting  a  debt,  it  does  not  extend  beyond  the  ordinary 
ways  of  collection  to  render  an  innocent  copartner  charge- 
able for  unusual  methods  of  extortion. 

Thus  in  Woodling  v.  Knickerbocker,  31  Minn.  268,  one  member 
of  a  firm  of  furniture  dealers  put  a  placard  upon  a  table  in  the 
store,  thus:  "  Taken  back  from  W.  Moral:  Beware  of  deadbeats." 
It  was  held  that,  there  being  nothing  in  the  furniture  business  to 
warrant  one  partner  to  bind  another  by  uttering  libel,  a  partner 
who  did  not  know  of  the  act  is  not  liable,  but  one  who  knew  and 
did  not  remove  the  table  is  liable. 

In  Rosenkrans  v.  Barker,  115  111.  331,  the  malicious  arrest  and  im- 
prisonment of  a  debtor  of  the  firm  by  one  partner,  in  absence  and 
without  the  consent  or  knowledge  of  a  copartner,  was  held  not  to 
make  him  liable,  the  act  failing  to  be  of  any  benefit  to  the  firm.    It 

1  Doremus  v.  McCormick,  7  Gill,  49 ;  Pierce  v.  Wood,  3  Foster  (23  N.  H.), 
519. 

485 


§  4G7.  CONDUCT  OF  THE  BUSINESS. 

was  also  lield  that,  even  if  the  innocent  partner  sulDScquently  ap- 
prove the  act,  exempLary  damages  cannot  be  recovered  from  him.' 

Nevertheless,  the  firm  was  held  liable  in  the  two  following  cases: 

In  Robinson  v.  Goings,  63  Miss.  500,  a  firm  had  a  deed  of  trust 
on  cotton  of  plaintiff,  grown  on  certain  property,  but  owed  noth- 
ing to  the  firm,  and  one  partner,  having  met  a  wagon  containing 
other  cotton  of  plaintiffs,  compelled  the  driver  to  take  it  to  the  firm's 
warehouse  and  leave  it  there,  saying  they  had  a  deed  of  trust  of  it, 
and  would  hold  it  till  hell  froze  over.  The  cotton  was  not  that 
covered  by  the  deed  of  trust,  and  the  plaintiff  owed  the  firm  noth- 
ing. It  was  held  that  the  partner  acted  as  agent  of  the  firm,  and 
in  the  prosecution  of  its  business,  and  under  a  claim  of  title  for  the 
firm,  and  that  all  the  partners  were  liable  and  in  punitive  damages. 

In  Vanderburg  v.  Bassett,  4  Minn.  242,  property  had  been  re- 
plevied from  a  firm,  and  hence  the  remedy  by  replevin  had  been 
exhausted;  nevertheless,  one  partner,  in  the  firm  name,  replevied  the 
property  again;  his  non-resident  copartner  was  held  liable  for  the 
conversion. 

§  467.  wilful  torts  and  violations  of  statutes.— The 

scope  of  the  business  does  not  generally  make  copartners 
liable  by  imputation  for  the  wilful  or  malicious  torts  of 
one  member  of  the  firm,  but,  as  pointed  out  above,  the  state- 
ment in  the  following  cases,  that  the  copartners  are  not 
liable  because  the  tort  was  wilful,  is  inaccurate;  it  is  because 
the  tort  is  not  in  the  scope  of  employment;  such  as  a 
malicious  prosecution  by  one  partner  on  a  charge  of  steal- 
ing partnership  property,^  committing  a  libel  upon  a  non- 
paying  customer;  ^  a  wrongful  ejectment  by  one  of  a  firm 
of  real  estate  agents.* 

In  Grund  v.  Van  Vleck,  69  111.  478,  R.  &  J.  had  been  agents  for 
the  owner  of  property  in  renting  a  house.  The  tenant  not  paying, 
J.,  on  behalf  of  the  landlord  and  in  the  absence  of  R.,  had  the  ten- 
ant expelled  and  his  goods  removed.  This  was  held  not  to  be  in 
the  ordinary  course  of  business,  nor  in  the  nature  of  a  taking  which 
is  available  to  the  partnership,  and  is  ratified,  and  R.  was  held  not 

1  And  see  Arbuckle  v.  Taylor,  3  3  Woodliug  v.  Knickerbocker,  31 
Dowl.  160.  Minn.  268. 

2  Ai buckle  v.  Taylor,  3  Dowl.  160;  ^And  see  Petrie  v.  Laraont,  1  Car. 
Rosenkrans  v.  Barker,  115  III.  331.  &  M.  93. 

486 


LIABILITY  FOR  TORTS.  §  468. 

liable  in  trespass.  It  was  also  said  that  R.  would  not  have  been 
liable  even  if  he  had  afterwards  sanctioned  the  act,  which,  however, 
he  had  not  done. 

In  Abraham  v.  Hall,  59  Ala.  386,  one  partner  in  a  mercantile 
house  took  possession  of  a  bale  of  cotton  on  which  the  complainant 
had  a  landlord's  lien  and  marked  his  own  initials  upon  it.  The 
mere  fact  of  partnership  does  not  make  the  copartners  liable 
unless  the  act  is  shown  to  be  in  the  scope  of  the  business. 

In  Crumless  v.  Sturges,  6  Heisk.  190,  the  government  postoffice 
was  kept  in  the  store  of  a  partnership  by  one  of  the  firm's  clerks 
for  the  absent  postmaster.  One  partner  is  not  liable  for  the  illegal 
act  of  the  other  in  using  the  postoffice  money;  nevertheless,  if 
•clearly  committed  in  the  prosecution  of  the  business  and  for  its 
benefit,  all  may  be  liable. 

Thus  in  Lothrop  v.  Adams,  13i  Mass.  471  (43  Am.  Rep.  528),  the 
business  of  the  firm  consisted  in  the  ownership  of  a  newspaper,  and 
all  were  held  liable  for  a  libel  published  by  one  partner  with  ma- 
licious intention.  The  test  of  liability  for  a  partner's  acts  was 
said  to  be,  would  they  be  liable  if  an  agent  intrusted  with  the  man- 
agement of  the  business  had  committed  the  tort?  And  if  the  lia- 
bility of  the  principal  be  limited  to  cases  where  he  derives  benefit 
from  the  agent's  act,  there  is  a  benefit  in  this  case  shared  by  all.' 

§  468.  An  act  which  is  illegal  as  being  contrary  to  a  stat- 
ute will  not  be  regarded  as  within  the  scope  of  the  business 
to  charge  the  other  partner  by  construction  merely.  • 

Thus  in  Graham  v.  Meyer,  4  Blatchf.  129,  where  a  statute  makes 
a  usurious  loan  void,  one  partner  took  a  chattel  mortgage  on  a 
steamboat  to  secure  a  usurious  loan  made  by  him  without  the  co- 
partner's knowledge.  In  an  action  against  the  partnership  as  for 
■conversion  of  the  boat,  it  was  held  that  the  innocent  partner  would 
not  be  held  liable  in  tort  for  a  violation  of  law  without  proof  of 
authority  or  ratification,  and  the  loan  will  not  be  regarded  as  in  the 
scope  of  the  business. 

So  in  Schreiber  v.  Sharpless,  6  Fed.  Rep.  175,  a  qui  tam  action 
was  brought  against  one  partner  for  the  act  of  another  in  permit- 
ting lithographic  copies  of  a  copyrighted  photograph  belonging  to  a 
third  person  to  be  printed  on  goods  of  the  firm.     The  statute  under 

I  See,  also,  Robinson  v.  Goings,  63  Miss.  500.  d 

487 


§  4G8.  CONDUCT  OF  THE  BUSINESS. 

which  the  action  was  brought  being  penal,  the  innocent  partner?^ 
were  held  not  liable. 

If  one  partner  is  guilty  of  a  breach  of  the  revenue  laws  in 
conducting  the  firm's  business  the  copartners  are  liable  for 
the  amount  and  for  penalties  whether  they  knew  and  con- 
sented or  not.  The  penalties  in  such  cases  are  no  doubt  re- 
garded as  indemnity  to  the  government  for  its  trouble.* 

In  Stockwell  v.  United  States,  13  Wall.  531  (aff.  3  Cliff.  284),  one 
partner  purchased  goods  for  the  firm  on  which  he  knew  the  gov- 
ernment had  been  defrauded  of  revenue,  and  the  firm  received  the 
property  and  had  the  profits  of  its  sale.  The  firm  was  held  liable 
for  the  statutory  penalty  of  double  the  value  without  proof  of 
knowledge  on  the  part  of  the  other  partners,  for  the  goods  them- 
selves became  liable  to  seizure,  and  the  act  of  the  partner  was  an 
interference  with  the  government  rights  of  property,  and  the  lia- 
bility is  not  penal,  but  indemnity  only.' 

Exemplary  or  punitive  damages,  it  has  been  held,  can  be  recov- 
ered from  the  firm  for  the  tort  of  one  partner  in  a  proper  case;  * 
but  as  he  is  not  a  participant  in  the  fraud  of  his  copartner  he  is 
not  to  be  subject  to  arrest  on  civil  process  for  fraud,**  nor  to  be 
found  guilty  of  actual  fraud,"  nor  liable  for  penalty,®  nor  subject,  if 
an  attorney,  to  summary  application  to  pay  money  appropriated 
by  his  copartner,  he  being  neither  guilty  nor  negligent.' 

1  Attorney-General  v.  Strangforth,  did  not  know  it,  but  afterwards  as- 
Bunb.  97;  Attorney-General  v.  Bur-  sented.  Exemplary  damages  were 
ges,  id.  233;  Attorney-General  v.  allowed  against  liim.  See  Peckham 
Wcekes,  id.  233;  Rex  v.  Manning,  Iron  Co.  v.  Harper,  41  Oli.  St.  100, 
Comyn,  016;  Stockwell  v.  United  109.  Contra,  see  Rosenkrans  r.  Bar- 
States.  13  Wall.  531  (aff.  s.  C.  3  Cliff,  ker,  115  111.  331. 

284);  United  States  v.  Tliomasson,  4  ^McNeely  v.    Haynes,  76    N.   Ca.. 

Biss.  99;  Graham  v.  Pocock,  L.  R.  3  123;    National    Bank    of    Common- 

P.  C.  345.  wealth  v.   Temple,  39  How.  Pr.  432. 

2  But  see  Rex  v.  Manning,  Comyn,  6  Stewart  v.  Levy,  36  Cal.  159. 
616.  6  Porter  v.  Vance,  14  Lea,  627,  that 

s  Robinson  v.  Goings,  63  Miss.  500  an  attorney  is  not  liable  for  penaltv 
(in  full,  §  466);  Brewing  v.   Berry-  and  disbarment  for  his  partner's  fail- 
man,  15  New  Brunswick,  515;  here  ure  to  pay  over  collections, 
an  active  partner  tore  out  inside  par-       T  Ex  parte  Flood,  23  New  Bruns- 
titions  of  leased   property   for    the  wick,  86. 
benefit  of  the  firm.     The  copartner 

488 


LIABILITY  FOR  TORTS.  §  471. 

§  469.  Ratification. —  On  the  principle  that  a  person  does 
not  make  himself  liable  by  ratifying  an  illegal  act  of  another 
unless  the  act  was  done  on  his  behalf  or  for  his  benefit,  if  a 
partner  commit  a  tort  outside  the  scope  of  the  business  and 
of  no  benefit  to  the  firm,  nor  on  its  behalf  or  in  its  interest, 
his  copartner's  subsequent  approval  of  it  will  not  make  him 
liable.^ 

In  Riley  v.  Noyes,  45  Vt.  455,  plaintiflF's  cow  trespassed  upon  a 
farm  managed  by  defendant  and  his  son  in  partnership.  The  son, 
instead  of  taking  the  cow  to  the  pound,  locked  her  up  in  the  barn 
and  refused  to  allow  plaintijff  to  remove  her  unless  he  paid  for  the 
damage  she  had  done.  It  was  not  decided  whether  the  defendant's 
interest  in  the  damages  would  have  alone  rendered  him  liable  for 
his  partner's  acts,  but  his  assent  to  the  detention  was  held  to  ren- 
der him  liable,  because  of  such  joint  interest  in  the  detention  as  a 
mode  of  recovering  the  damages. 

§  470.  Nominal  partner.— In  Stables  v.  Eley,  1  C.  &  P.  614, 
a  retired  partner  whose  name  remained  on  the  wagon  which  was 
driven  over  the  plaintiff  by  an  employee  of  the  continuing  part- 
ner was  held  liable.  A  person  is  liable  by  holding  out  only  upon 
the  ground  of  estoppel.  It  cannot  be  said  that  if  the  name  had 
not  been  on  the  wagon  the  plaintiff  could  have  avoided  being  run 
over.  The  only  estoppel  apparent  in  the  case  is  that  he  was  in- 
duced to  sue  the  retired  partner  supposing  him  to  be  a  member  of 
the  firm,  which  is  not  sufficient,  or  upon  the  ground  that  suffering 
the  name  to  continue  proves  a  partnership  in  fact  and  not  by  es- 
toppel. 

§471.  Liability  is  joint  and  several. —  The  liabiHty  of 
partners  for  the  tort  of  one  member  of  the  firm  or  for  the 
Tort  of  a  servant  is,  as  in  all  cases  of  torts,  joint  and  sev- 
eral. This  is  not  a  violation  of  the  rule  that  a  partner  is 
the  agent  of  all  and  not  of  each,  but  rests  on  the  usual  doc- 
trine of  torts  that  joint  principals  are  jointly  and  severally 
liable  for  torts.  Hence  the  action  may  be  against  all  the 
partners  or  against  one,  or  against  some  of  them  less  than 
all.^ 

1  Wilson  V.  Turnman,  6  M.  &  G.  2  Edmonson  v.  Davis,  4  Esp.  14; 
236 ;  Grund  V.  Van  Vleck,  69  111.  478 ;  Attorney-General  v.  Burges,  Bunb. 
Rosenkrans  u.  Barker,  115  111.  331.        223;   Stockton   v.    Fry,    4  Gill,  406; 

48J 


§472.  CONDUCT  OF  THE  BUSINESS. 

FRAUDS   AND   MISREPRESENTATIONS. 

§  472.  Deceit  in  regard  to  their  own  property. —  The  sub- 
ject of  the  hability  of  partners  for  the  deceits,  frauds  or 
misrepresentations  of  each  other  is  separated  from  their 
liabihty  for  other  torts  because,  unlike  the  latter,  the  lia- 
bility for  deceits  cannot  be  joint  and  several,  but  joint  only. 
This  seems  apparent  from  the  fact  that  the  partners  are 
held  to  the  truth  of  the  appearances  they  have  made,  and 
are  not  liable  to  a  greater  extent  for  the  falsity  than  they 
would  have  been  had  the  appearances  been  as  represented. 
I  have  no  authorities  on  the  distinction,  however. 

The  firm  is  liable  for  the  frauds  and  misrepresentations  of 
one  partner  in  the  disposition  of  partnership  property  held 
for  sale,  for  such  representations  are  within  the  apparent 
scope  of  the  business. 

Thus  in  Chester  v.  Dickerson,  54  N.  Y.  1;  13  Am.  Rep.  550 
(aff'g  52  Barb.  349),  a  partnership  existed  in  the  business  of  buy- 
ing and  selling  lands.  One  partner,  by  pouring  coal  oil  upon  a 
tract  of  land  and  passing  it  off  as  oil  land,  procured  a  sale.  All 
the  partners  were  held  liable,  although  the  others  are  entirel}'  in- 
nocent. 

So  where  commodities  are  agreed  to  be  sold  by  the  firm  or  by  a 
partner,  and  one  partner  substitutes  different  or  inferior  articles, 
the  firm  is  liable.' 

In  Cook  V.  Castner,  9  Cush.  266,  276,  the  partner  making  a  sale 
stated  to  the  buyer  that  his  copartner  had  told  him  that  he  (the 
copartner)  had  examined  the  property  and  found  it  sound  and 
right,  and  referred  the  buyer  to  the  copartner.  This  is  a  misrep- 
resentation, and  the  rule  that  a  person  is  not  bound  by  statements 
made  as  received  from  another  to  whom  he  refers  does  not  apply, 
for  if  the  copartner  had  not  so  informed  him  both  are  bound  by 

Head     v.    Goodwin,     37     Me.    181 ;  Berryman,  15  New  Brunswir-k,  515. 

McCrillis  u.  Hawes,  38  id.  566 ;  Howe  Aud  so  for  fraud   or  inisappropria- 

V.   Shaw,    56    Me.    291;    Morgan    v.  tion  or  conversion.     Sadler  v.  Lee,  6 

Skidraore,  55   Barb.  263;  Roberts  v.  Beav.  324. 

Johnson,  58  N.  Y.  613;  Mode  v.  Pen-       i  Locke  v.   Stearns,  1  Met.  560  (35 

land,  93  N.  Ca.  292;  Wliite  v.  Smith,  Am.  Dec.  382);  Wolf  v.  Mills,  56  111. 

12  Rich.  (S.    Ca.)   L.  595;  Wood   v.  360. 
Luscomb,  23  Wis.  287;  Brewing'?;. 

490 


LIABILITY  FOR  TORTS.  §  473. 

his  false  statement,  and  if  tlie  copartner  had  made  the  statement 
then  the  latter's  misrepresentation  bound  both. 

In  Strang  v.  Bradner,  114  U.  S.  555  (aff 'g  Bradner  v.  Strang, 
89  N.  Y.  299),  phiintiffs,  who  had  been  in  the  habit  of  lending 
their  notes  as  an  accommodation  to  the  firm  of  S.  &  H.,  by  request, 
delivered  to  S.  &  H.  four  notes,  to  be  used  by  S.  &  H.  in  their  busi- 
ness. Afterwards  S.,  without  H.'s  knowledge,  falsely  represented 
I). at  they  liad  been  unable  to  negotiate  the  notes  because  made 
payable  at  the  office  of  S.  &  H.,  and  requested  other  notes  in 
their  i)lace.  in  reliance  on  which  plaintiffs  sent  other  notes,  and  S. 
procured  tJie  discount  of  them  all  and  put  the  avails  iato  the  firm's 
business.  The  fraud  being  in  the  course  of  business  was  held  to 
render  the  innocent  partner  liable. 

In  Thwing  v.  Clifford,  138  Mass.  482,  a  broker  employed  to  sell 
a  house  agreed  with  another  broker  to  divide  the  commissions  if 
the  latter  procured  a  purchaser.  The  second  broker,  purporting  to 
represent  possible  purchasers,  got  the  owner  to  name  a  price  by 
assuring  him  that  no  other  broker  had  anything  to  do  with  the 
trade,  and  a  sale  was  effected.  The  innocent  partner's  action  for 
commissions  prosecuted  for  joint  benefit  was  held  to  be  defeated  by 
the  fraud. 

In  Hawkins  v.  Appleby,  2  Sandf.  421,  plaintiffs  sold  goods  to  a 
firm,  and  were  induced  to  take  the  note  of  a  third  person  in  pay- 
ment on  the  representation  of  one  partner  that  it  was  good,  he 
knowing  the  maker  to  be  insolvent.  All  the  partners  are  liable  in 
case  for  deceit  as  well  as  in  assiiinp-^itiov  the  value  of  the  goods.' 

So  the  representations  of  a  partner  to  third  persons  about  to 
purchase  notes  made  by  the  firm,''  as  to  their  validity,  bind  the  firm; 
but  not  if  such  partner  did  not  know  the  inquiry  was  made  with  a 
view  to  purchase.^  So  in  selling  notes  belonging  to  the  firm,  rep- 
resentations of  a  partner  as  to  the  maker's  solvency  bind  the  firm.'' 

§  473.  Other  frauds. —  So  of  other  misrepresentations  and 
frauds  in  the  conduct  of  the  business  of  the  firm,  all  the 
partners  are  estopped  by  the  false  representations  of  a  paii- 
ner  if  they  would  have  bound  the  firm  if  true. 

'  See  Reynolds  u.  Waller,  1  Wash.  ^  In  re  Schuchardt,  15  Bankr. 
(Va.)  1C4.  Reg.  161. 

2  French  v.    Howe,    15  Iowa,  563;       <  Sweet  u.  Bradley,  24  Barb.  549. 
McKee  v.  Hamilton,  33  Oh.  St.  7. 

491 


§  473a.  CONDUCT  OF  THE  BUSINESS. 

Rapp  r.  Latham,  2  B.  &  Aid.  795,  is  a  leading  and  very  severe  ap- 
plication of  this  rule.  There  the  firm  of  P.  &  L.,  liquor  merchants, 
were  employed  by  the  plaintiff  to  buy  and  sell  wine  for  him.  P., 
the  active  partner,  desiring  to  raise  money,  wrote  to  the  plaintiff 
that  the  firm  had  effected  a  purchase  for  him,  and  the  plaintifi'  re- 
mitted the  necessary  money.  P.  afterwards  wrote  him  that  the  wine 
had  been  sold  at  a  profit,  and  remitted  the  profits.  A  number  of 
purchases  and  sales  were  reported  as  made,  and  sums  were  remitted 
by  P.  In  fact,  however,  all  the  purchases  and  sales  were  fictitious, 
but  more  money  had  been  remitted  to  the  plaintiff  than  he  had  ad- 
vanced; yet  it  was  held  that  both  partners  were  estopped  to  deny 
that  the  transactions  were  actual,  and  were  hefd  liable  for  the  re- 
ported profits  in  addition  to  the  original  advance. 

In  Coleman  v.  Pearce,  26  Minn.  123,  C.  consigned  wheat  to  0. 
to  sell  on  commission  when  ordered.  0.  took  in  P.  as  a  partner,  and 
both  notified  D.  thereof,  and  accounts  were  rendered  to  him  in  the 
firm  name,  showing  that  the  property  and  account  was  transferred 
to  the  new  firm,  in  reliance  upon  which  the  plaintiff  did  not  order 
a  sale  for  several  months,  and  then  learned  that  0.  had  converted 
the  wheat  to  his  own  use  prior  to  the  formation  of  the  partner- 
nership.  Both  partners  were  held  estopped  to  deny  the  truth  of 
their  false  representations. 

In  Griswold  v.  Haven,  25  N.  Y.  595,  the  managing  partner  of  a 
firm  of  warehousemen  issued  certificates  showing  the  deposit  of 
grain  when  none  had  been  deposited.  A  person  who  had  loaned 
money  to  a  holder  of  one  of  these  over-issued  certificates  upon  its 
security  can  hold  the  firm  liable  for  conversion  for  refusal  to  de- 
liver the  grain,  the  partners  being  estopped  to  deny  its  existence. 

§  473a.  A  partner's  fraud  in  selling  an  individual  interest 
in  the  partnership  is  not  chargeahle  to  his  copartners,  for  it 
is  not  an  act  in  the  conduct  of  tlie  business,  nor  a  sale  of  its 
property,  but  is  in  the  sale  of  the  property  of  the  individual. 

Thus  in  Schwabacker  v.  Riddle,  84  111.  517,  F.,  a  member  3f  a 
firm,  persuaded  R.  to  buy  out  the  partners  of  F.,  agreeing  that  he 
could  buy  at  the  invoice  price,  and  fraudulently  representing  thq.t 
the  invoice  was  $14,000,  when  it  was  in  fact  but  $11,000.  The  other 
partners,  who  were  ignorant  of  the  deceit,  are  not  liable,  for  F.  was 
not  their  agent  in  the  sale. 

In  Chamberlin    v.  Prior,  2  Keyes,  539;  1  Abb.  App.  Dec.  338.  a 

492 


LIABILITY  FOR  TORTS.  §  474. 

sale  of  an  interest  in  a  firm  was  made  by  the  ostensible  partners  by- 
fraudulent  statements.  A  dormant  partner  innocent  of  the  fraud 
was  held  not  to  be  liable  in  damages  therefor. 

MISAPPLICATIONS   OF  MONEY   OR  PROPERTY. 

§  474.  If  the  firm  has  charge  or  obtains  possession  of  the 
money  or  property  of  others,  or,  what  is  the  same  thing,  if 
property  is  delivered  to  one  partner  as  representative  of  the 
firm,  to  dispose  of  it  in  a  way  that  is  within  the  apparent 
scope  of  the  business,  all  the  partners  are  liable  for  the  mis- 
application or  conversion  of  the  same  by  one  partner  to 
such  uses  as  cause  its  loss  to  the  owner. ^ 

In  Sadler  v.  Lee,  6  Beav.  32 1,  stock  was  sent  to  a  banking  firm 
to  receive  dividends  and  sell.  One  partner  clandestinely  sold  it 
and  the  firm  had  credit  for  the  proceeds.  The  partners  were  held 
liable  severally,  and  the  court  said  would  have  been  held  though  the 
proceeds  had  not  been  put  to  the  firm's  credit. 

In  Hammond  v.  Heward,  11  Up.  Can.  C.  P.  261,  plaintiff  made 
two  notes  to  the  order  of  the  firm  of  H.  &  G.,  defendants,  brokers, 
to  get  discounted  for  him.  The  defendants  did  not  get  them  dis- 
counted before  dissolution,  and  after  dissolution  Gr.  indorsed  the 
firm  name,  procured  a  discount  of  the  paper  and  applied  the  pro- 
ceeds to  his  own  use.  Both  partners  were  held  liable  to  the  plaint- 
iff, who  had  been  compelled  to  pay  the  notes.^ 

In  Peckham  Iron  Co.  v.  Harper,  41  Oh.  St.  100,  one  partner  of  a 
firm  employed  to  sell  the  plaintiff's  iron,  finding  tiie  market  to  be 
rising,  procured  a  third  person  to  purchase  it  for  the  benefit  of 
such  partner  and  reported  to  the  plaintiff  that  it  was  sold,  the 

1  Ex  parte  Biddulph,  3  De  G.  &  iff  sued  H.  &  G.  for  money  had  and 
Sm.  587;  Sadler  v.  Lee,  6  Beav.  324;  received  and  for  negligence  in  in- 
Nisbet  V.  Patton,  4  Rawle,  120  (26  dorsing  before  dissolution,  and  were 
Am.  Dec.  122);  Blair  v.  Bromley,  3  held  not  liable  on  either  count,  for 
Ph.  354;  5  Hare,  542;  St,  Aubyn  v.  the  money  was  not  received  by  the 
Smart,  L.  R.  3  Ch.  App.  646;  Pluraer  firm  but  by  G.,  holding  that  it  was 
V.  Gregory,  L.  R.  18  Eq.  621.  not  negligence  or  breach  of  duty  in 

2  In  Hammond  v.  Heward,  20  Up.  G.  to  discount  the  notes,  that  being 
Can.  Q.  B.  36,  the  facts  are  about  tlie  the  purpose  for  which  he  held  them, 
same  as  in  the  foregoing  case,  except  and  for  the  wrong  of  not  paying 
only  that  the  firm's  indorsement  was  over  the  proceeds  H.  was  not  lia- 
made  before  dissolution.    The  plaint-  ble. 

493 


§  475.  CONDUCT  OF  THE  BUSINESS. 

other  partners  being  innocent  of  the  facts.  All  the  partners  were 
held  liable. 

So  in  Castle  v.  Bullard,  23  How.  172.  The  firm  held  goods  of  the 
plaintiff  to  bs  sold  on  commission.  One  or  two  of  the  partners 
induced  the  plaintiff  to  consent  to  a  sale  of  the  goods  to  an  insolv- 
ent person  by  false  and  fraudulent  representations  as  to  his  charac- 
ter and  standing.     All  the  partners  were  held  liable  for  the  loss. 

It  was  on  this  principle  that  the  series  of  cases  arising  out  of  the 
Fauntleroy  forgeries '  were  decided.  Fauntleroy  (who  was  after- 
wards tried  and  executed  for  one  of  these  crimes)  and  others,  being 
trustees  of  stock  under  a  will,  forged  the  names  of  his  co-trustees 
upon  the  certificates  to  enable  a  banking  firm  in  which  he  was  a 
partner  to  sell  the  stock.  The  bank  sold  the  stock  through  a 
broker,  who  deposited  the  proceeds  to  the  credit  of  the  bank  in 
another  bank,  which  was  its  agent  and  with  which  its  accounts  of 
sales  of  stock  were  kept.  The  proceeds  of  the  sale  were  thus  in  the 
custody  of  the  former  bank.  Fauntleroy  drew  it  out  for  his  own 
purposes,  on  checks  made  by  him  in  the  firm  name.  On  the  bank- 
ruptcy of  the  bank  the  trustees  were  held  entitled  to  prove  the 
amount  against  its  estate  as  a  debt.  Had  the  money  been  deposited 
in  the  names  of  the  trustees,  Fauntleroy  could  not  have  drawn  it 
out  in  his  capacity  of  partner  in  the  bank.  The  fact  that  the  other 
partners  were  not  aware  of  the  sale  and  receipt  of  the  proceeds 
makes  no  difference,  because  it  is  part  of  the  ordinary  business  of 
bankers  to  sell  stock.* 

§  475.  Where  the  property  of  a  person  is  in  the  custody 

1  Stone  V.  Marsh,  Ry.  &  Moody,  placed  the  ruling  on  the  ground  of 
364;  6  B.  &  C.  551;  8  Dow.  &  Ryl.  negligence,  in  tliat  the  money  having 
71 ;  Keating  v.  Marsh,  1  Mont.  &  A.  come  into  the  custody  of  the  firm 
582 ;  aff.  on  app.  Marsh  u.  Keating.  1  the  other  partners  should  have 
Bing.  N.  C.  198;  2  CI.  &  Fin.  250;  known  of  it;  and  not  having  been 
Ex  parte  Bolland,  Mont.  &  Mac.  315 ;  placed  to  the  account  of  the  trustees, 

1  Mont.  &  A.  570;  Hume  v.  Bolland,  must  be  taken  to  have  remained  in 
Ry.  &  Moody,  370;  1  Cr.  «fe  M.  130;  the  custody  of  the   house.     Mr.  Pol- 

2  Tyr.  575.  lock,  in  his  admirable  Digest  of  Law 

2  This  explanation  of  these  cases,  of  Partnership,  article  24,  note,  says: 
that  it  is  because  the  scope  of  the  "One  can  hardly  see  what  the 
businc^Bs  included  sales  of  stock,  is  knowledge  or  means  of  knowledg<' 
not  original  with  rae,  but  is  given  has  to  do  with  it,  if  covered  by  the 
by  Sir  N.  Lindley  and  was  that  given  scope  of  the  business." 

in  the  later  cases.     The  earlier  cases 

494 


LIABILITY  FOR  TORTS.  g  476 

ot  a  firm  and  the  owner  gives  to  one  partner  a  special  au- 
thority to  act  in  regard  to  it,  which  the  other  partners  do 
not  have,  and  such  partner  uses  the  power  to  appropriate 
the  property  to  his  own  uses,  the  mere  fact  that  his  mem- 
bership in  the  firm  afforded  the  opportunity  is  ^lot  sufficient 
to  make  the  partnership  hable. 

Ex  parte  Eyre,  1  Ph.  227  (aff' g  3  Mont.  D.  &  DeG.  12),  is  the 
leading  case  upon  this  subject.  There  a  customer  deposited  with 
his  bankers  a  box  containing  certain  securities,  and  afterwards 
loaned  some  of  the  securities  to  one  of  the  partners  for  his  own  pur- 
poses, upon  his  substituting  in  their  place  other  securities  to  secure 
the  replacement  of  those  borrowed.  The  borrowing  partner  after- 
wards secretly  removed  the  substituted  securities  for  his  own  pur- 
poses and  put  in  their  place  others  of  less  value.  The  firm  was  held 
not  liable  for  a  loss  resulting  from  this  conversion,  they  having  re- 
ceived no  benefit,  and  the  transaction  having  been  with  the  partner 
in  his  individual  capacity,  and  the  securities  being  in  effect  in  his 
individual  custody.* 

In  Pierce  v.  Jackson,  6  Mass.  242,  245,  a  firm  made  a  note  pay- 
able to  a  company,  and  one  of  the  partners  forged  the  name  of  the 
company  upon  it  to  give  the  plaintiff  title  to  sue  upon  it;  this  fraud 
was  held  to  give  the  plaintiff  no  cause  of  action  against  the  other 
partner.  But  see  the  comments  on  this  case  in  Locke  v.  Stearns,  1 
Met.  564. 

§  476.  If  money  or  property  is  procured  by  a  partner,  os- 
tensibly on  behalf  of  the  firm  and  within  the  apparent  scope 
of  his  authority,  it  is  within  the  custody  of  the  firm,  and  the 
firm  is  liable  for  it,  although  he  misappropriates  it. 

Thus,  if  part  of  the  business  of  a  firm  is  investing  money  for 
others,  and  money  is  received  to  be  invested  in  a  mortgage,  and  one 
of  the  partners  forges  a  mortgage  without  the  other's  knowledge 
and  keeps  the  money,  the  other  is  liable.^  So  of  an  attorney  who 
collects  money  for  a  client  and  absconds  with  it,  his  partner  is 
liable.' 

In  Alexander  v.  Georgia,  56  Ga.  478,  a  firm  was  selling  merchan- 

1  See,  also,  Coomer  r.  Bromley,  5  2  Willet  v.  Chambers,  Cowp.  814. 
DeG.  &  Sm.  532;  Bishop  v.  Countess  SMcFarland  v.  Crary,  8  Cow,  253; 
of  Jersey,  2  Drew.  143.  Dwight  v.  Simon,  4  La.  Ann.  490. 

495 


§  477.  CONDUCT  OF  THE  BUSINESS. 

dise  to  the  W.  &  A.  R.  R.,  the  bills  being  paid  by  the  state.  The 
active  partner,  bj''  duplicate  bills  and  bogus  accounts,  defrauded  the 
state  out  of  a  lai-ge  sum;  the  innocent  copartner  was  lieLl  liable  to 
refund,  bat  contra  o£  bills  outside  of  and  unconnected  with  the 
partnership  business;  and  if  the  paying  agent  of  the  state  knew  the 
partner  was  a'cting  in  violation  of  his  duty  to  the  firm,  the  innocent 
partner  would  not  be  liable.  It  did  not  appear  that  the  money 
went  into  the  firm.' 

§  4^77.  If  money  or  property  comes  into  the  hands  of  a 
partner  for  purposes  not  within  the  scope  of  the  business, 
his  misuse  of  it  does  not  affect  the  innocent  copartners. 

Where  a  firm  of  solicitors  are  acting  for  an  estate,  and  bonds 
payable  to  bearer  are  deposited  with  one  partner  individually  with- 
out the  knowledge  of  the  copartners  and  he  misappropriates  them, 
the  firm  is  not  liable.^  So  .where  money  is  paid  to  or  borrowed  by 
one  of  a  firm  of  solicitors,  to  be  invested  in  mortgages,  and  is  mis- 
applied by  him,  the  firm  is  not  liable,  without  evidence  that  the 
scope  of  the  business  included  investing.^ 

The  facts  that  letters  referring  to  the  matter  are  copied  into  the 
firm's  letter-book  and  included  in  the  firm's  statement  of  account 
to  the  estate,  and  that  the  partner  paid  some  of  the  interest  by 
drawing  a  firm  check,  but  on  each  occasion  repaid  the  amount  to 
the  firm  by  his  private  check,  were  held  to  be  too  ambiguous  to 
affect  the  other  partners  with  acquiescence  in  such  partner's  custody 
being  the  firm's  business.'' 

In  Bounce  v.  Parsons,  45  N.  Y.  ISO,  M..  H.  &  Co.  dissolved  by 
the  retirement  of  one  partner  and  the  coming  in  of  a  new  member, 
the  new  firm  using  the  same  name  as  the  old.  B.,  one  of  the  orig- 
inal and  continuing  partners,  informed  plaintiff  that  the  debts  of 
the  old  firm  could  be  bought  at  a  discount,  and  plaintiff  advanced 
him  money  to  buy  them  up.  B.  then  drew  up  notes  in  the  firm 
name,  dated  back,  and  gave  them  to  plaintiff  as  being  the  debts  of 
the  old  firm.  B.  placed  the  money  of  plaintiff  thus  obtained  in  the 
new  firm  and  got  credit  for  it  on  their  books,  and  used  it  to  pay  the 

1  See,  also,  Royer  v.  Aydelotte,  1  3  Harman  v.  Johnson,  2  El.  &  Bl. 
Cint.  Superior  Ct.  Rep.  80,  cited  61 ;  Plumer  v.  Gregory,  L.  R,  18  Eq. 
under  g  480.  621. 

2  Cleather  v.    Twisden,   24  Ch.  D.  *  Cleather  v.  Twisden,  supra. 
731 ;  28  id.  340. 

496 


LIABILITY  FOR  TORTS.  §  478. 

debts  of  the  old  firm.  His  partners  knew  nothing  of  the  arrange- 
ment or  the  deception,  and  the  new  firm  was  held  liable  to  plaintiff. 
There  was  either  a  loan  to  B.,  outside  of  the  firm's  business,  or  B. 
was  trustee  of  the  money  and  put  it  into  the  new  firm  as  his  own. 
The  fraud  was  not  in  the  procuring  of  the  money,  but  in  the  means 
used  to  conceal  its  misappropriation. 

In  Adams  v.  Sturges,  55  111.  46S,  the  owner  of  shares  of  stock 
gave  a  power  of  attorney  for  their  sale  to  a  person  who  then  trans- 
ferred them  to  his  firm,  and  then  in  the  firm's  name  transferred 
them  and  took  them  back  himself;  the  copartners,  knowing  nothing 
of  the  matter,  are  not  liable  for  the  conversion. 

In  Toof  V.  Duncan,  45  Miss.  48,  F.,  a  member  of  a  cotton  ship- 
ping firm,  being  sent  out  on  a  trading  expedition  for  the  firm,  was 
asked  by  one  D.  to  collect  a  draft  for  him,  which  he  drew  payable 
to  F.  F.  indorsed  the  draft  to  the  firm,  requesting  to  have  it  put 
to  his  credit.  The  firm  collected  the  draft,  and  F.  withdrew  the 
amount  and  did  not  pay  it  over  to  D.  The  partners  are  not  liable 
to  D.,  though  had  the  draft  been  payable  to  the  firm  it  would  have 
been  otherwise. 

In  Linn  v.  Ross,  16  N.  J.  L.  55,  R.,  being  indebted  to  the  firm  of 
L.  &  H.,  handed  a  note  owned  by  him  to  L.  to  collect  for  him  and 
either  hand  him  the  proceeds  or  apply  it  on  the  debt.  L.  did  not 
account  for  the  proceeds,  and  it  was  held  that  the  firm  was  not 
liable. 

MONEY  OR  PROPERTY   WROXGFULLY  OBTAINED  BY  ONE   PART- 
NER FOR  THE  FIRM. 

§  478.  A  firm  has  frequently  been  held  liable  for  the  torts^ 
or  frauds  of  a  partner,  of  which  it  received  the  benefit,  not 
committed  in  transacting  the  business  of  the  firm  or  within  ■ 
the  apparent  scope  of  his  agency.     As  where  a  partner  ob- 
tains money  by  crime  or  fraud,   or  converts  property  and  • 
uses  the  fund  for  the  firjTi,  either  by  direct  contribution  or 
paying  its  debts,  where  it  is  manifestly  just  that  the  de- 
frauded person  should  be  deemed  a  'creditor  of  the  firm; 
and  not  merely  of  the  guilty  partner.     Liability  in  such 
cases  has  been  sometimes  put  upon  the  ground  of  an  im- 
plied ratification,  arising  from  receiving  a  benefit.     But  this 
ground  is  not  the  true  one.     Ratification  never  takes  place 

Vol.  1  —  33  497 


g  479.  CONDUCT  OF  THE  BUSINESS. 

■without  knowledge,  and  we  have  already  seen  that,  in  cases 
of  contract,  a  partnership  never  becomes  debtor  by  receiving 
the  benefit  of  a  transaction  made  on  the  credit  of  an  indi- 
vidual partner. 

In  the  case  of  money  which  has  no  ear-marks,  and  to  which, 
therefore,  the  wrongful  holder  can  pass  a  good  title,  yet  the  wrong- 
ful holder  himself  cannot  be  said  to  have  title,  and  perhaps  a  gra- 
tuitous transferee  would  have  no  better  right  to  retain  the  benefit 
of  it.  Where,  therefore,  a  partner  wrongfully  obtains  money  for 
the  firm,  tlie  innocent  partners  are  obviouslj'  not  liable  ex  ddido, 
but  the  firm  is  chargeable  for  money  had  and  received. 

In  the  case  of  property  tortiously  obtained  for  the  firm  by  one 
partner,  without  complicity  on  the  part  of  his  copartner,  if  no  title 
has  passed,  the  firm  may  be  liable  for  a  conversion;  and  if  use<l  by 
such  partner  for  the  firm,  or  if  obtained  under  such  circumstances 
that  the  partner  could  have  invested  a  bona  fide  bu3'er  Avith  title, 
yet  the  firm  does  not  stand  in  the  relation  of  a  purchaser  for  value, 
and  the  right  of  thef  original  owner  to  rescind  and  demand  back  his 
property  must  be  deemed  still  available  to  him.  It  seems  to  me  that 
the  above  is  the  true  explanation  of  the  decisions  and  dicta  following. 

§  479.  In  the  case  of  money  so  obtained,  a  distinction  must  be 
made  between  a  conversion  for  the  firm  and  a  conversion  by  a  part- 
ner, and  a  subsequent  application  of  the  money  to  the  use  of  the 
firm.  There  is  certainly  a  difference  between  the  case  of  stealing 
money  or  raising  it  on  forged  paper  for  a  firm,  and  a  case  of  so  ob- 
taining money  and  afterwards  forming  a  partnership,  contributing 
such  money  as  capital.  Yet  in  the  latter  case,  had  goods  been  so 
obtained  and  contributed,  the  owner  could  hold  all  the  partners 
for  a  conversion,  if  they  refused  to  deliver. 

Thus,  in  Rapp  v.  Latham,  2  B.  &  Aid.  795,  the  money  was  pro- 
cured by  the  false  pretenses  of  one  partner,  and  used  for  the  firm; 
the  firm  was  held  liable  for  money  received  for  its  use. 

In  Manufacturers'  &  Mech.  Bank  v.  Gore,  15  Mass.  75  (8  Am. 
Dec.  83),  a  partner  obtained  money  on  a  note  signed  in  the  firm 
name,  upon  which  the  .name  of  a  third  person  as  indorser  was 
forged,  and  the  proceeds  went  to  the  use  of  the  firm.  The  lender  can 
immediately,  without  awaiting  the  maturity  of  the  note,  sue  both 
partners  for  money  had  and  received,  lent,  etc.,  although  one  was 
innocent. 

498 


LIABILITY  FOR  TORTS.  §  480. 

In  Wallace  v.  James,  5  Grant's  Ch.  (Up.  Can.)  163,  a  person  pro- 
cured money  from  plaintiff  by  selling  forged  paper  to  him,  and 
put  the  money  into  his  partnership.  The  guilty  partner  absconded, 
and  the  other  partner  assigned  for  benefit  of  creditors.  The  plaintiff 
has  a  right  to  be  paid  out  of  the  partnership  assets. 

§  480.  So  in  the  case  of  goods  obtained  by  fraud,  no  title 
in  them  vests  in  the  firm,  as  where  a  partner  orders  goods 
with  a  preconceived  design  to  raise  money  upon  them  and 
absconds. 

Thus,  in  Kilby  v.  Wilson,  Ryan  &  Moo.  178,  plaintiffs  as  brokers 
])urchased  cottons  for  T.  &  Co.,  and  paid  for  them  with  the  check 
of  T.  &  Co.,  received  by  them  from  T.,  and  delivered  to  T.  the  war- 
rants for  the  cotton,  which  T.  then  deposited  as  security  with  the 
defendants,  and  absconded,  and  the  check  was  dishonored,  and  T. 
&  Co.  became  bankrupt.  In  trover  for  the  cottons,  Lord  Tenter- 
den  instructed  the  jury  that,, if  T.  procured  the  cottons  with  a  pre- 
conceived design  of  not  paying  for  them,  plaintiffs  could  recover, 
but  not  if  the  design  to  defraud  was  formed  after  he  had  got  pos- 
session.* 

Where  a  partner  wrongfully  took  the  property  of  a  third  person 
and  put  it  into  the  assets  of  the  firm,  thereby  increasing  them, 
the  firm  was  held  liable.'    So  if  procured  by  fraud.* 

In  Miller  v.  Manice,  6  Hill,  114,  123-4,  Walworth,  J.:  If  one 
partner  procures  from  a  third  person  his  note  by  falsely  represent- 
ing that  he  can  obtain  money  for  him,  and  then  appropriates  the 
note,  he  alone  is  liable  for  the  conversion  or  in  assumpsit  waiving 
the  tort.  But  if  he  applies  the  proceeds  of  the  note  to  the  benefit 
of  his  firm,  as  by  paying  a  partnership  debt,  all  the  partners  may 
be  held  liable  or  the  tort-feasor  alone. 

In  Royer  v.  Aydelotte,  1  Cint.  Superior  Ct.  Rep.  80,  P.,  owning 
a  government  voucher  for  $1,440,  transferred  it  to  A.,  the  plaintiff, 
in  payment  of  a  debt  she  owed  him.     P.  was  also  indebted  to  the 

1  Stewart  v.  Levy,  36  Cal.  159,  was    would  have  been  liable  to  imprison- 
also  an  action  arising  out  of  the  pur-    ment  under  a  statute, 
chase  of  a  partner  with  the  inten-       2Durant    v.    Rogers,    87    111.   508; 
tion  of  not  paying;  but  the  action    Royer  v,  Aydelotte,  1  Cint.  Superior 
was  for  tlie  deceit,  and  the  guilty    Ct.  Rep.  80. 

jiartner    alone  was    held    liable    in       3  Blight  v.  Tobin,  7  Monroe,  612  (18 
lort,  otherwise  the  innocent  partner   Am.  Dec.   219);  Olmsted  v.  Hotail- 

ing,  1  Hill,  317. 
499 


§  481.  CONDUCT  OF  THE  BUSINESS. 

firm  of  R.,  C.  &  Y.,  and  C,  by  fraudulent  representations,  induced 
A.  to  let  him  hold  it.  C.  collected  the  voucher,  paid  the  debt  due 
from  P.  to  the  firm  with  the  proceeds  and  gave  the  balance  to  P., 
who  was  insolvent,  and  thus  A.  lost  it  all.  R.  and  Y.  were  held 
liable  for  the  full  amount,  and  not  merely  for  what  they  got.  The 
court  place  the  liability  of  the  defendants  on  the  ground  that  C. 
committed  the  tort  in  the  course  of  the  business,  which  is  hardly 
tenable. 

Receiving  a  benefit  from  the  fraud  of  a  partner  was  also  men- 
tioned as  a  reason  for  holding  the  firm,  including  the  innocent 
partners,  liable  in  the  following  cases.' 

TRUST  FUNDS  USED   FOR  FIRM. 

§  481.  Innocent  partners  not  liable.— If  a  partner  has 
possession  of  the  funds  of  others  in  trust,  as  where  he  is  an 
executor,  guardian,  trustee,  and  the  like,  and  improperly 
uses  the  trust  funds  for  the  benefit  of  the  firm,  the  nature 
of  the  copartners'  liability  depends  on  whether  they  par- 
ticipated in  the  breach  of  trust. 

If  the  trustee,  without  his  copartners  knowing  that  the  money 
is  held  in  trust,  uses  it  to  pay  debts  of  the  firm,'  or  applies  it  to 
other  partnership  uses,'  or  lends  it  to  the  firm.,*  or  puts  it  in  as 
capital,'  the  cestui  que  trust  does  not  become  a  creditor  of  the 
firm,  and  can  neither  maintain  an  action  against  them  or  prove 
against  the  joint  estate  in  bankruptcy.  The  transaction  is  regarded 
merely  as  an  advance  by  the  guilty  partner  to  his  firm.  On  the 
other  hand,  had  the  use  of  the  money  for  the  firm  by  the  trustee 
been  with  the  permission  of  the  ce^tui^  it  would  have  been  a  loan 
by  him  to  the  firm  and  he  would  have  had  the  rights  of  a  creditor.' 

1  Sadler  v.  Lee,   6  Beav.  324;  De-  2^9  in  JSrparfe  Apsey,  3  Bro.  C.  C. 

vaynes  v.  Noble,   Clayton's  Case,  1  2G"5;  J^o^par^e  White.L.  R.  6  Ch.  397. 

Mer.   575;  Devaynes  v.   Noble,  Bar-  ^  Ex  parte    Heaton,    Buck,    38G; 

ing's  Case,  1  Mer.  611;  Castle  v.  Bui-  Jaques  v.  Marquand,  6  Cow.  497;  8 

lard,    23   How.    172,    189;  Strang  v.  Wend.  490;  Tallmadge  v.  Penoyer, 

Bradner,    114    U.    S.    555;   Gray    v.  35  Barb.  120;  Willett  r.  Stringer,  17 

Cropper,  1   Allen,  337;  Dorenius  v.  Abb.  Pr.  152. 

McCormick,    7    Gill,    49;     Fripp    v.  <  Evans  u.  Bidleman,  3  Cal.  435. 

Williams,  14  S.  Ca,  5C2;  Gerhardt  y.  »  Harper  v.  Lamping,  33  Cal.  641. 

Swaty,  57   Wis.   24;  Re  Ketcbum,  I  eWhitaker    v.    Brown,   16    Wend. 

Fed.  Rep.  815.  505  (overrules  s.  c.  11  id.  75). 

500 


LIABILITY  FOR  TORTS.  §  4S3. 

These  principles  and  authorities  show  that  this  liability  of  the 
partners  is  not  a  proper  partnership  liability,  for  those  partners 
alone  who  were  cognizant  of  the  misapplication  of  the  trust  are 
chargeable,  and  hence  the  ground  of  liability  is  that  they  are  joint 
wrong-doers,  and  not  that  they  are  partners.' 

The  knowledge  of  the  guilty  partner  is  not  the  knowledge  of 
the  firm,  because  it  is  outside  of  the  firm's  business.  Nor  will  the 
fact  that  one  of  the  other  partners  knew  and  agreed  to  the  im- 
proper application  of  the  fund  make  the  firm  liable." 

In  Davis  v.  Gelhaus,  4i  Oh,  St.  69,  a  public  ofiicer  put  public 
moneys  into  the  firm,  Avith  his  partner's  knowledge,  and  both 
were  held  liable,  although  on  dissolution  the  officer  took  all  the 
assets,  and  agreed  to  pay  all  the  debts,  and,  having  paid  back  the 
monej",  it  was  held  that  he  could  not  enforce  contribution  from  his 
copartner,  the  misappropriation  being  criminal  by  statute. 

§482.  Incoming  partners. —  Where  the  misuse  of  the 
funds  has  taken  place  before  the  admission  of  a  partner  into 
the  firm,  he  would  not  be  liable,  because  not  a  participator 
in  the  misuse.* 

Where  the  new  firm  has  agreed  to  be  liable  for  all  debts  for 
goods,  this  was  held  to  include  a  claim  for  public  money  applied  to 
pay  for  the  goods  by  the  partner  while  county  treasurer.*  And  if, 
on  the  formation  of  the  firm,  one  partner  contributes  trust  property 
as  his  agreed  share  of  the  capital,  without  notice  of  the  trust  to  his 
copartners,  they  are  not  debtors  to  the  cedui,  nor  can  he  follow 
the  funds  or  claim  more  from  the  firm  than  the  trustee  could  have 
done."  But  if,  on  the  formation  of  the  firm,  one  partner's  capital 
was  composed  of  trust  funds,  and  the  other  knew  this,  both  are 
liable.*  And  if  the  copartner  knew  the  fund  belonged  to  another, 
although  he  supposed  that  the  owner  had  loaned  it  to  the  partner 
to  enable  him  to  make  his  contribution,  it  is  a  partnership  debt.' 

§  483.  Participants  all  liable.— But  if  the  other  partners 
have  knowledge  of  the  nature  of  the  funds  at  the  time  of 

^And   per  Lord    Cairns,    Vj'se  v.  SHolIerabaek  t?.  More,  44  N.  Y.  Su- 

Foster,  L.  R.  7  H.  L.  318,  334.  perior  Ct.  107. 

2  Evans  v.    Bidleraan,  3  Cal.  435.  «See  Emerson  v.  Durand,  64  Wis. 
And  see  Ex  parte  Heaton,  Buck,  386.  Ill,  116. 

3  Tvvyford  v.  Trail,  7  Sim.  93.  i  Houser  v.  Riley,  45  Ga.  126. 
*  Hutchinson  v.  Smith,  7  Paige,  26. 

501 


§  484.  CONDUCT  OF  THE  BUSINESS. 

such  misappropriation,  they  are  imphcated  in  the  breach  of 
trust,  and  become  themselves,  at  the  election  of  the  cestui 
que  trust,  his  debtors,  or  even  trustees  of  the  fund,  as  having 
connived  at  the  violation.^ 

And  if  the  copartners  know  the  fund  belongs  to  an  estate,  tliey 
are  bound  to  inquire  on  what  trusts  it  is  held,  and  knowledge  of 
the  powers  of  the  trustee  partner  is  imputed  to  them,  whether 
they  had  actual  notice  or  not.* 

In  Price  v.  Mulford,  36  Hun,  217,  a  partner  holding  a  trust  fund 
took  an  asset  of  the  firm,  being  a  certilicate  of  indebtedness  due 
from  a  third  person,  and  reported  that  he  had  invested  the  trust 
money  in  it,  and  reimbursed  the  firm  by  canceling  a  balance  due 
to  himself  from  it.  Here  the  firm  were  held  to  become  trustees, 
and  both  partners  liable  to  the  cestui  que  trusty  although  the  firm 
received  no  benefit  from  the  transaction.* 

And  if  the  copartners  were  innocent  of  the  violation  of  the  trust, 
and  the  guilty  partner  subsequently  gives  the  note  of  the  firm  to 
the  owner  of  the  fund  for  the  amount,  the  firm  has  been  held  liable 
upon  the  note.* 

§  484.  The  liability  is  a  joint  and  several  one,"  and  the  succeed- 
ing representative  of  the  trust  can  sue  the  firm  as  for  a  debt,*  and 

1  Travis  v.  Milne,  9  Hare,  141 ;  In  re  that  the  knowledge  of  the  copartners 
Jordan,  2  Fed.  Rep.  3l9;  Trull  v.  is  unimportant,  if  the  partnership  re- 
Trull,  13  Allen,  407 ;  Colt  v.  Lasnier,  ceived  the  benefit,  and  the  firm  is 
9  Cow.  320;  Hutchinson  v.  Smith,  7  liable  to  the  owner  of  money  held  by 
Paige,  26;  Price  v.  Mulford,  36  Hun,  one  partner  as  his  agent,  if  it  wasap- 
247;  Stoddard  v.  Smith,  11  Oh.  St.  plied  to  the  business  of  tlie  firm. 
581;Davi3tJ.  Gelhaus,44id.69;Emer-  Welker  v.  Wallace,  31  Ga.  362;  Pal- 
Bon  V.  Durand,  64  Wis.  Ill,  116.  Even  mer  v.  Scott,  68  Ala.  380.  Contra, 
if  he  be  a  limited  partner,  who  takes  after  dissolution,  when  there  is  no 
no  part  in  the  management  of  the  power  to  create  new  liabilities.  Dun- 
business.      Guillou    V.   Peterson,   89  lap  v.  Limes,  49  Iowa,  177. 

Pa.  St.  163  (rev.  s.  O.  9  Phila.  225).  <  Palmer    v.   Scott,    68    Ala.    880; 

But  see   comments  on   the  case  in  Richardson  v.   French,   4  Met.  577, 

Bates  on  Limited  Partnership,  p.  82.  where  the  note  was  made  to  a  cred- 

2  Travis  v.  Milne,  9  Hare,  141.   And  itor  of  the  cestui  by  agreement. 

see  Houser  v.  Riley,  45  Ga.  126.     Or  SFlockton  v.  Banning,  L.  R.  8  Ch. 

even,  it  has  been  said,  if  by  reasona-  App.  223;  In  re  Jordan,  2  Fed.  Rep. 

ble  inquiry  he  could  have  ascertained  319. 

the    source    of    the    funds.      In  re  ^In  re  Jordan,  2  Fed.  Rep.    319 

Ketchum,  1  Fed.  Rep.  815.  (dictum);    Bush    v.   Bush,   33    Kan, 

3  Some  cases,  however,  have  ruled  556. 

502 


LIABILITY  FOR  TORTS.  §  485. 

prove  in  bankruptcy  against  the  joint  estate  of  the  firm,  and  the 
separate  estate  of  the  trustee  partner.' 

A  partner  in  a  banking  firm  deposited  money  in  the  bank  as 
executor  of  an  estate.  In  his  capacity  of  executor  he  is  a  creditor  of 
the  firm.*  And  if  he  takes  as  security  from  his  firm  a  note  and  mort- 
gage payable  to  his  cestui,  the  delivery  to  him,  although  he  is  one 
of  the  makers  and  grantors,  is  good,  he  having  control  of  the  cestui  s 
property,  for  he  receives  it  as  representative.* 

§  485.  Accoiintalbility  is  for  profits  or  interest. —  The  rule 
where  a  trustee  employs  the  trust  funds  in  trade  or  specu- 
lation, that  he  must  account  for  profits  or  interest  at  the 
cestui's  election,  applies  where  he  has  engaged  the  funds  in 
a  firm  of  which  he  is  partner.* 

And  although  a  mere  borrower  of  trust  money  is  not  lia- 
ble for  profits  made  by  its  use,  yet  the  trustee,  who  is  also  a 
partner,  is  liable  for  them.  The  amount  of  profits  will  be 
the  proper  share  of  the  trustee.  There  is  great  force  in  the 
argument  that  he  should  account  for  all  the  profits  which 
the  fund  has  earned,  although  he  was  compelled  to  allow  his 
copartners  to  participate  in  them,  but  the  law  is  as  above 
stated.^ 

In  Seguin's  Appeal,  103  Pa.  St.  139,  a  guardian  put  his  ward's 
money  into  his  firm  with  the  knowledge  of  his  coj)artner.  The 
ward  having  declined  to  elect  between  interest  and  profits,  it  was 
held  not  error  for  the  court  to  elect  for  her.  The  profits  she  is  en- 
titled to  is  what  was  earned  by  her  capital  excluding  those  attrib- 
utable to  her  trustee's  skill,  industry  and  labor  in  conducting  the 
business.  Thus  she  may  be  awarded  a  proportion  of  the  gross 
profits  in  the  ratio  of  her  capital,  less  proper  allowances  for  carry- 
ing on  the  business,  not  exceeding  what  would  have  been  paid  to 

1  In  re  Jordan,  2  Fed.  Rep.  319.  »  Vyse  v.  Foster,  L.  R.  7  H.  L.  318, 

2McCracken  v.  Milhous,  7  III.  App.  and  8  Ch.  309;  Laird  v.  Chisholm,  30 

169.  Scottish  Jurist,  582;  Jones  v.  Foxall, 

8  Tucker  17.  Bradley,  33  Vt.  324.  15  Beav.  388,  895;  Palmer  v.  Mitch- 

*The  cases  where  the  trust  fund  ell,  2  M.  &  K.  672;  Seguin's  Appeal, 

was  already  in  the  firm,  or  is  put  in  103  Pa.  St.  139;  Long  v.  Majestre,  1 

as  part  of  the  capital,  are  elsewhere  Johns.  Ch.  305. 

considered.    See  AccouNXiua. 

503 


§  487.  CONDUCT  OF  THE  BUSINESS. 

hire  the  same  number  of  persons  as  the  number  of  partners  to  do 
what  they  did.' 

§  486.  Following  the  fund. —  The  doctrine  that  trust  funds 
can  be  followed  into  whatever  investments  they  are  placed, 
where  the  claim  of  bona  fide  buyer  cannot  be  interposed, 
applies. 

Thus  in  Vanderwyck  v.  Summerl,  2  Wash,  C.  C.  41,  a  claim  bo- 
longing  in  part  to  A.  and  part  to  B.,  having  been  decided  in  their 
favor,  the  proceeds  were  remitted  to  the  firm  of  A.  &  C,  to  be  cred- 
ited to  A.,  who  was  indebted  to  the  firm,  but  C.  knew  that  B.  had 
•an  interest  in  it.     B.  can  recover  his  proportion  from  the  firm. 

So  in  Carter  v.  Lipsey,  70  Ga.  417,  a  guardian  loaned  the  trust 
funds  to  his  firm,  and  died.  His  surviving  partner,  with  knowledge 
of  the  nature  of  the  claim,  assigned  for  benefit  of  creditors.  It  was 
held  that  ihe  cestui  could  compel  repayment  by  the  assignee  in  pref- 
erence to  creditors,  because  he  took  only  the  surviving  partner's 
title,  and  the  survivor  could  not  change  the  nature  of  the  claim. 

In  Stoddard  v.  Smith,  11  Oh.  St.  581,  United  States  land  scrij) 
certificates,  issued  to  one  in  trust  for  named  and  unnamed  heirs, 
were  used  by  him  and  his  partners  in  payment  for  lands,  the  named 
heirs  consenting,  and  the  title  was  taken  in  the  name  of  another 
partner.  The  lands  were  held  chargeable  with  the  trust  in  favor  of 
the  unnamed  heirs,  notice  of  the  trust  aj)pearing  on  the  face  of  the 
certificates. 

Somewhat  similar  is  Wallace  v.  James,  5  Grant's  Ch.  (Up.  Can.) 
163,  where  a  person  procured  money  from  plaintiff  by  selling  forged 
paper  to  him,  and  put  the  money  into  his  firm;  he  then  absconded 
and  the  other  partner  assigned  for  benefit  of  creditors.  It  was 
held  that  plaintiff  was  entitled  to  be  paid  out  of  the  assets. 

Where  an  ofi&cer  of  a  bank  lends  its  funds  to  his  firm  without 
sufficient  security  and  they  become  mingled  with  other  partnership 
property  they  cannot  be  followed.* 

§487.  Repayment  to  the  trustee. —  Where  an  executor 
loaned  the  trust  funds  to  his  firm,  the  other  partners  know- 
ing the  nature  of  the  funds,  repayment  to  him  will  exoner- 

*  As  to  accounting  for  interest,  see  2  Case  v.  Beauregard,  1  "Woods,  C. 
§  787.  C.  125.    (99  U.  S.  119.) 

604 


LIABILITY  FOR  TORTS.  g  488. 

ate  them,  if  he  has  power  to  receive  the  amount  and  release 
the  claim.  In  fact  they  have  no  other  way  of  discharging 
the  debt.^ 

As  a  factor  cannot  sell  his  principal's  goods  to  a  firm  of  which  he 
is  a  member,  the  firm  having  received  and  sold  the  goods  will^nwa 
facie  be  deemed  to  have  the  proceeds  for  the  owner;  and  in  such 
case  it  has  said  to  be  doubtful  whether  they  could  be  exonerated  by 
accounting  to  the  factor. '^ 

But  merely  turning  over  to  the  trustee  partner  the  assets  upon 
dissolution  of  the  firm,  and  his  agreeing  to  pay  the  debts,  is  not 
such  payment  as  will  exonerate  the  retiring  partner.^ 

CRBIES.'' 

§  488.  A  partner  is  not  hable  to  conviction  by  the  state 
for  the  crimes  of  his  partner  unless  he  has  participated 
in  them,  else  a  good  man  might  be  liable  for  a  bad  one. 
Assent  or  participation  is  necessary;  mutual  agency  to  vio- 
late penal  laws  not  being  imphed.*  Sometimes,  however, 
the  contrary  is  enacted  by  statute  in  cases  of  illegal  sale  of 
intoxicating  liquor.® 

An  officer  of  a  national  bank  who  allows  his  firm  to  overdraw 
with  intent  to  defraud  the  bank  is  guilty  of  a  misapplication  of  its 
money  under  the  Revised  Statutes  of  United  States,  §  5209.' 

A  partnership  cannot  be  indicted  in  the  firm  name;  the  individual 
members  alone  can  be  indicted  and  convicted.*  They  may  be  jointly 
indicted  if  their  act  is  joint,  as  where  they  made  and  signed  a  false 

1  Sherburne  v.  Goodwin,  44  N.  H.  the  property  of  the  firm,  see  §  277. 
271,  holding  that  payments  to  him  5  State  i?,  Coleman,  Dudley  (S.  Ca.), 
from  time  to  time,  not  stating  in  L.  32;  State  v.  Bierman,  1  Strob.  L. 
what  account,  and  charged  to  his  256;  Acree  v.  Commonwealth,  13 
private    account,    could,    on    subse-  Bush,  353. 

quent  adjustment,  be  debited  to  him  « Whitton  v.  State,  87  Miss.    379 ; 

as  executor.  State  v.  Neal,  27  N.  H.  131. 

2  Martin  v.  Moulton,  8  N.  H.  504.  7  United  States  v.   Fish,  24  Fed 

3  Smith  V.  Jameson,  5   T.    R.  601 ;  Rep.  585. 

Dickenson  v.  Lockyer,  4  Ves.  36 ;  8  Peterson  v.  State,  32  Tex.  477 ; 
Davis  V.  Gelhaus,  44  Oh.  St.  69.  Allen  v.  State,  34  id.  230. 

<  For  crimes  by  one  partner  against 

505 


§  488.  CONDUCT  OF  THE  BUSINESS. 

return  to  the  assessor  of  internal  revenue; '  or  if  they  sold  liquors 
without  a  license  as  a  firm.* 

In  an  indictment  for  obtaining  goods  by  false  pretenses  from  a 
firm,  the  ownership  of  the  goods  may  be  averred  to  be  in  the  firm 
and  the  misrepresentations  made  to  the  former  in  the  firm  name;* 
and  so  of  embezzling  partnership  money.* 

An  indictment  for  forgerj''  upon  several  persons  who  are  partners 
need  not  allege  the  partnership  name.*  And  an  intent  to  defraud  a 
firm  being  an  intent  to  defraud  each  of  its  members,  an  indictment 
for  uttering  a  counterfeit  with  intent  to  defraud  A.  is  sustained 
by  proof  of  intent  to  defraud  the  firm  of  A.  &  B.* 

1  United  States  v.  McGinnis,  1  Abb.       <  State  v.  Mohr,  68  Mo.  303. 
U.  S.  120.  6  Durham  r.  People,  5  111.  173. 

JLemonsu.  State,  50  Ala.  130.  eStoughton  i».  State,  2  Oh.  St.  562. 

»  State  V.  Williams,  103  Ind.  235. 

506 


CHAPTER  XI. 

PAYMENT,  NOVATION   AND  MERGER. 
APPLICATION    OF   PAYMENTS. 

§  489,  The  general  rules  for  the  application  of  payments 
bjr-a  person  who  owes  several  debts  to  the  same  creditor,  and 
pays  money  on  account,  are: 

I,  The  debtor  may  require  the  appropriation  to  be  made 
upon  any  of  the  debts  which  it  will  pay  in  full,  provided  he 
exercises  the  right  at  the  time  of  payment. 

He  need  not,  however,  expressly  declare  such  intent.  It  is  suf- 
ficient if  tlie  intent  can  be  gathered  from  circumstances.' 

Thus  if  a  partner  pays  money  with  instructions  to  credit  it  upon 
his  individual  debt,  it  cannot  be  credited  upon  a  debt  due  from  his 
firm,  unless  it  is  partnership  money  thus  used.' 

If  a  person  is  indebted  on  several  accounts  to  a  firm,  an  agree- 
ment with  one  partner  as  to  which  account  an  intended  payment 
should  be  applied  is  admissible  to  show  the  intention  of  a  subse- 
quent general  payment  by  him  to  the  firm's  book-keeper.* 

II.  If  the  debtor  has  not  signified  the  appropriation,  the 
creditor  may  apply  the  money  as  he  chooses;  but  after  he 
has  done  so,  and  notified  the  debtor  of  it,  he  cannot  change 
the  appropriation. 

The  creditor  need  not  make  the  appropriation  immediately.  He 
has  at  least  a  reasonable  time  in  which  to  do  it  before  a  contro- 
versy has  begun.* 

iSee  Shaw  v.   Picton,  4  B,  &  C.  ^Wittkowsky  v.   Reid,  83  N.    Ca. 

715;  Waters  V.  Tompkins,  2  C.  M.  &  116. 

R.  723;  Peters  v.  Anderson,  5  Taunt.  ^Fairchild  v.  Holly,  10  Conn.  17."), 

596;  Wittkowsky  v.  Reid,  82  N.  Ca,  184;  Philpott  v.  Jones,  2  A.  &  E.  41 , 

116;  Lysaght  v.  Davern,  5  Bli.  N.  R.  Mills  v.  Fowkes,  5   Bing.  N.    C.  455; 

1;  City  Discount  Co.  v.  McLeaa,  L.  Simson   v.    Ingham,  2  B.  &  C.    65; 

R.  9  C.  P.  692.  Alexandria,    Mayor  of,  v.   Patten,  4 

2  Bray  v.  Crain,  59  Tex.  649;  Miles  Cranch,  317,  320. 
V.  Ogden,  54  Wis.  573. 

507 


g  490.  CONDUCT  OF  THE  BUSINESS. 

The  creditor  who  has  entered  the  payments  in  his  private  books 
to  one  account  may  even  subsequently  change  them  to  another  ac- 
count, if  the  debtor  has  not  been  informed  of  the  original  application 
of  them,  for  the  uncommunicated  entries  are  not  conclusive  upon  the 
creditor.'  But  after  he  has  notified  the  debtor  he  cannot  alter  the 
appropriation.''  If  the  creditor  is  an  executor  of  an  estate  which 
is  surety  for  the  debtor,  he  cannot,  even  with  the  debtor  s  consent, 
change  an  appropriation  once  made  so  as  to  revive  a  lajjsed  liabil- 
ity of  the  estate.^ 

§  490.  Where  firm  and  one  partner  arc  creditors. —  Where 
the  firm  and  one  partner  are  creditors  of  the  same  person, 
and  a  payment  is  made  by  him  to  the  creditor  partner,*  it 
has  been  suggested  that  the  duty  to  observe  good  faith  will 
require  him  to  apply  it  to  the  partnership  debt.^  This  is  no 
doubt  true,  if  the  payment  is  made  in  the  firm's  place  of 
business,  or  in  the  course  of  a  partnership  dealing,  or  where 
the  partner  is  treated  or  is  acting  in  his  capacity  as  partner. 
But  where  the  payment  is  entirely  outside  of  the  firm's  in- 
terests, for  example,  where  the  debtor  addresses  a  check  to 
the  partner  individually,  no  reason  is  perceived  for  such 
stringency;  a  partner  scarcely  owes  a  greater  duty  to  the 
firm  than  to  himself,  and  this  is  not  competing  with  it.® 

Where  the  creditor  partner  assigns  his  claim  to  the  firm,  pay- 
ments by  the  debtor  generally  may  be  applied  on  either  account.' 

In  Simson  v.  Ingham,  2  B.  &  C.  65,  the  creditor  entered  the 
payments  in  his  private  book  to  one  account,  and  subsequently 

1  Simson  v.  Iiisliam,  noticed  infra,  of  A.  &  B.  As  agent  of  A.  &  B,,  he 
§501.  And  see  Field  y.  Carr,  5  Bing.  sent  a  bill  of  exchange  which  be- 
13,  where  this  was  attempted  after  longed  to  D.  to  Philadelphia,  and  ia- 
three  years.  structed   the  recipient  to    pass  the 

2  Hooper  r.  Keay,  1  Q.  B.  D.  178;  proceeds  to  B.'s  account,  which  was 
Dorsey  v.  Wayman,  6  Gill,  59;  Sey-  done;  yet  the  payment  on  B.'s  ac- 
mour  V.  Marvin,  11  Barb.  80.  count  was  held  to  be  a  receipt  of  the 

^Merrimaa    v.   Ward,  1   J.  &  H.  money  by  A.  &   B.  to  the  use  of  D., 

371.  and  both  are  liable  to  D.  for  it. 

*  Lindley,  Part.  p.  43'ii.  6  A  dictum  in   Codman    v.    Arm- 

*  See  cases  under  §  412.  And  pos-  strong,  28  Me.  91,  would  seem  to 
sibly  this  proposition  was  involved  permit  an  application  of  such  pay- 
in  Wilkins   v.   Boyce,  3   Watts,    39.  ment  to  the  individual  debt. 

There  C.  owed  B.,  and  also  the  firm       '>  Badger  v.  Daeuieke,  58  Wis.  678. 

508 


PAYMENT,  NOVATION  AND  MERGER.       §  491. 

changed  them  to  another  account.  It  was  held  that  the  entries 
were  not  conclusive  upon  him  until  he  had  communicated  the  fact 
to  the  debtor. 

Where  a  partner  shipped  lumber  of  the  firm,  and  also  some  of 
his  own  to  one  E.,  to  sell,  without  notifying  E.  of  the  different 
ownerships,  in  consequence  of  which  E.  kept  no  separate  accounts 
of  the  lots,  here  the  last  amount  paid  by  E.  to  such  partner  will  be 
considered  as  the  avails  of  the  partnership  lumber,  but  here  the 
presumption  was  raised  against  the  partner  because  of  his  negli- 
gence.' 

Where  the  partners  by  arrangement  with  the  creditor  divide  the 
debt,  each  assuming  half,  each  is  entitled  to  have  subsequent  pay- 
ments made  with  partnership  assets  credited  equally  to  each,  for 
one  partner  alone  has  no  right  to  dictate  the  entire  appropriation, 
and  such  would  be  the  presumed  intention  of  the  debtors.^ 

§491.  Firm  antl  one  partner  as  (lel)tors. —  Thus,  if  the 
firm  and  also  one  partner  are  debtors  of  a  person,  a  pay- 
ment generally  by  the  debtor  partner  may  be  applied  by  the 
creditor  to  either  debt.^  And  if,  after  dissolution,  one  part- 
ner continues  to  deal  with  a  creditor  of  the  firm  and  makes 
payments  generally,  the  creditor  may  apply  them  to  the 
individual  debt.'* 

Where  two  firms,  in  both  of  which  one  B.  was  a  partner,  owe 
the  same  creditor,  and  B.  in  part  payment  gives  his  individual 
notes  to  the  creditor,  if  the  creditor  proves  the  note  against  B.'s 
administrator,  disclaiming  any  particular  application,  he  does  not 
waive  his  claim  against  either  firm.' 


"o"- 


1  Russell  u.  Green,  10  Conn.  269.  3  Brown  v.  Brabham,  3  Oh.    275; 

2  Moore  v.  Riddell,  11  Grant's  Ch.  Logan  v.  Mason,  6  W.  &  S.  9.  And 
Up.  Can.  69,  where  one  partner  gave  see  cases  under  §  314.  If  these 
their  creditor  a  mortgage  on  his  were  partnership  funds  the  payment 
separate  property  for  half  the  debt,  would  undoubtedly  be  controlled  by 
and  the  other  gave  an  indorsed  note  the  rule  in  §  494. 

for  the  other  half.     Subsequent  pay-  *  Sneed  v.  Weister,  2  A.   K.  Mar. 

ments  out  of  the  firm's  assets  were  (Ky.)  277;  Fitch  v.  McCrimmon,  80 

applied  by  the  creditor  upon  the  note.  Up.  Can.  C.   P.   183;  Simson  v.  Ing- 

but  it  was  held  that  the  mortgagor  ham,  §  501,  infra. 

was  entitled  to  liave  half  of   them  SYoumans    v.    Heartt,    34    Mich, 

credited  upon  his  mortgage.  397. 

509 


§  494.  CONDUCT  OF  THE  BUSINESS. 

§  49,3.  Partnersliip  money  to  be  applied  to  partnership 
debts.— III.  It  is  a  general  rule  that  if  a  person  owes 
debts  in  two  capacities  and  makes  a  payment  the  credit  will 
be  upon  the  debt  in  the  capacity  in  which  the  money  is  held. 
Where  a  payment  is  made  by  a  partner  to  one  who  is  cred- 
itor both  of  himself  and  of  the  firm,  if  the  payment  is  made 
with  partnership  funds  it  must  be  credited  to  the  partner- 
ship debt.  If  the  creditor  knew  of  the  nature  of  the  fund 
the  rule  is  imp  irative  and  controls  Rules  I  and  II  above, 
for  otherwise  the  creditor  would  be  participant  in  a  fraud- 
ulent use  of  the  funds  of  the  firm. 

Thus,  S.,  being  indebted  to  C,  took  in  F.  as  a  partner,  S.  be- 
ing the  managing  partner.  C.  then  sold  goods  to  the  firm,  and  S. 
made  payments  to  C.  upon  his  individual  account  in  checks  signed 
in  the  firm  name.  In  an  action  by  C.  against  the  firm  it  was  held 
that  these  payments  must  be  credited  upon  the  firm's  debt;  thatC. 
was  put  upon  inquiry  by  the  signature  of  the  checks.* 

So,  where  one  who  is  surety  both  for  a  firm  and  one  partner  re- 
ceives partnership  funds  and  applies  them  to  the  individual  debt,  and 
afterwards  pays  the  partnership  debt  with  his  own  money,  his  rights 
are  the  same  as  if  he  had  paid  the  latter  debt  with  the  firm's  money.* 

§494.  if  creditor  has  no  notice  of  nature  of  the 

fund.—  The  rule  is  doubtless  the  same  when  the  creditor  is 
not  aware  of  the  nature  of  the  fund  and  attempts  to  appro- 
priate it  to  the  individual  debt  of  the  partner  from  whom 
he  received  it.  We  shall  hereafter  see  that  an  unauthor- 
ized application  of  partnership  property  to  pay  a  separate 
debt  is  held  in  not  a  few  cases  to  give  the  creditor  no  right 
to  hold  the  property  as  against  the  firm,  irrespective  of  his 
knowledge  of  the  fraud.  These  cases  are  all  authorities  to 
sustain  the  above  proposition,  which,  however,  may  be  true 
without  relying  upon  them,  since  the  court  can  rectify  the 
fraud  without  material  injury  to  the  creditor  by  applying 
the  fund  to  the  joint  debt. 

1  Cornells  v.  Stanhopp,  14  R.  I.  97;    case  is  modified  in  other  respects  by 
Davis  V.  Smith,  27   Minn.  390  (this    S.  C.  29  id.  201). 

2  Downing  v.  Linville,  3  Bush,  472, 
510 


PAYMENT,  NOVATION  AND  MERGER.  §  49o. 

In  Thompson  v.  Brown,  1  Mood.  &  Malk.  40,  Brown  was  in- 
debted to  the  plaintiffs  and  took  Weston  into  partnership.  The 
phaintiffs  continued  to  furnish  goods  to  the  firm.  Brown  paid  the 
plaintiff  on  general  account  a  check  of  £60.  The  firm  was  after- 
wards dissolved,  Brown  became  insolvent,  and  the  plaintiffs  sued  to 
recover  their  claim,  claiming  that  they  had  a  right  to  apply  the 
check  to  the  oldest  item  of  the  account;  but  Abbot,  C.  J.,  rule 
that  if  the  money  paid  be  the  money  6f  the  partners  the  creditor 
not  at  liberty  to  apply  it  to  the  payment  of  the  debt  of  the  in- 
dividual, and  left  it  to  the  jury  to  say  whose  property  the  check 
was,  and  the  jury  found  for  the  defendants. 

So  in  Wiesenfeld  v.  Byrd,  17  S.  Ca.  106,  where  a  surviving  part- 
ner made  payments  generally  from  partnership  funds,  the  creditor 
must  apply  them  to  the  partnership  debt  and  not  to  the  surviving 
partner's  individual  debt.' 

So  in  St.  Louis  Type  Foundry  Co.  v.  Wisdom,  4  Lea,  695,  where 
successive  firms  of  the  same  name,  but  in  part  of  different  mem- 
bers, had  a  running  account  with  a  creditor,  payments  made  during 
the  last  firm  must  be  credited  to  the  account  of  the  firm  whose 
funds  are  thus  used. 

In  Fitch  V.  McCrimmon,  30  Up.  Can.  C.  P.  183,  however,  C.  &  L., 
partners,  dissolved,  L.  agreeing  to  pay  the  debts,  and  C,  to  whom 
the  firm  was  indebted,  taking  the  assets  and  continuing  the  busi- 
ness. C.  made  purchases  on  his  own  account  from  a  creditor  of 
the  firm,  and  payments  by  him,  it  was  held,  could  be  credited  upon 
his  individual  account,  although,  with  money  derived  from  the  sales 
of  the  partnership  goods.     L.,  however,  assented. 

§  495,  indivitlual  money.— In  the  case  of  individual 

money  it  is  a  little  different.     No  doubt  a  payment  by  a 
partner  is  presumptively  on  private  account. 


2 


'See,  also,  McClean  v.  Miller,  2  ally  and  as  executor,  Goddard  v. 
Cranch,  C  C.  620.  Cox,  2  Stra.  1194;  Sawyer  v.  Tappan, 

2  So  held  in  Gass  v.  Stinson,  3  14  N.  H.  352;  Fowke  v.  Bowie,  4 
Sumn.  98,  109.  And  see  Sneed  v.  Harr.  &.  J.  566.  See  Scott  v.  Ray. 
Wiester,  2  A.  K.  Mar.  277;  Baker  v.  18  Pick.  300,  where  a  payment  to  an 
Stackpoole,  9  Cow.  420  (18  Am.  Dec.  assignee  for  creditors,  who  was  also 
."iOS).  Such  would  be  the  rule  as  to  a  himself  a  creditor,  was  ordered  cred- 
;>ayment  by  one  who  owes  individu-   ited  on  both  accounts  equally, 

511 


§  497.  CONDUCT  OF  THE  BUSINESS. 

But  even  then  it  would  not  be  applied  to  sucli  individual  dcbt^ 
as  were  afterwards  created.' 

Where  a  partner  gives  security  to  pay  both  debts,  its  proceeds 
have  been  held  first  applicable  to  discharge  his  individual  items.* 

In  Johnson  v.  Boone,  2  Harr.  (Del.)  172,  it  was  held  that  as  a 
payment  generally,  if  of  jiartnership  money,  must  be  applied  to 
the  joint  debt,  so,  vice  versa,  if  out  of  individual  money  it  must  be 
applied  on  the  individual  debt,  unless  the  debtor's  assent  to  the  con- 
trary application  is  shown.  This,  however,  is  not  consistent  with 
the  cases  under  §  491. 

§  496.  If  neither  party  specify  appropriation. —  IV.  In  the 

absence  of  intention  appearing  from  the  acts  of  the  parties, 
the  law  will  presume  an  intention  to  appropriate  as  follows: 

1.  To  pay  interest  before  principal. 

2.  To  pay  an  unsecured  debt  before  a  secured  debt,  unless 
the  security  be  a  third  person  or  his  property;'  but  money 
realized  from  a  security  will  be  applied  to  the  debt  it 
secures.* 

3.  To  pay  legal  and  not  illegal  items.' 

4.  To  pay  matured  as  against  unmatured  debts." 

5  To  pay  the  earlier  items  of  an  entire  account  in  prefer- 
ence to  the  later. 

§  497.  Running  acconnt. —  The  rule  applying  general  pay- 
ments to  the  earliest  items  of  an  entire  account,  or,  as 
otherwise  expressed,  the  presumed  intent  that  the  first 
credit  item  shall  go  to  discharge  the  first  debit  item,  raises 
the  very  important  question  in  partnership  matters,  what 
constitutes  a  running  account  in  case  of  dissolution  when 
the  business  is  continued? 

The  various  cases  under  the  head  of  Devaynes  v.  Noble,  1 
Mer.  529  (aff'd  2  E.  &  M.  4;i5),  are  loading  cases  on  this  sub- 

1  Baker  r,  Stackpoole,  s«2>'";  Milrs       ^SuulerH    v.    Knox,    57    Ala.    80; 
V.  Ogtlen,  54  Wis.  573.  Jnncs  v.  Benedict,  83  N.  Y.  79. 

2  Lee  V.  Fontaine,   10  Ala.  755  44       ^  Uunbar  v.  Garrity,  58  N.  H.  575. 
Am.  Dec.  505).  <>  Richardson     v.    Coddington,    49 

3  Garrett's  Appeal,  100  Pa.  St.  507;  Midi.  1. 
Tlie   Schooner   Stuelnian,  5  Iluglies, 

C.  C.  210. 

512 


PAYMENT,  NOVATION  AND  MERGER        §  497. 

ject.  There  were  five  partners  in  the  banking  business;  one, 
Devaynes,  died,  and  the  surviving  partners  continued  busi- 
ness in  the  old  name,  without  opening  new  books  or  making 
a  rest  in  the  accounts.  On  becoming  bankrupt,  those  who 
had  been  customers,  both  of  the  old  and  new  firm,  claimed 
the  right  to  resort  to  Devaynes'  estate  for  the  balances  on 
their  running  accounts.  These  creditors  were  divided  into 
classes.  In  Sleech's  Case,  Miss  Sleech  had  continued  to  deal 
with  the  new  firm,  by  drawing  out  and  not  depositing.  No 
appropriation  of  these  payments  having  been  made  at  the 
time,  it  was  held  to  be  too  late  then  to  make  them,  and  they 
were  applied  to  extinguish  the  balance  as  it  stood  at  De- 
vaynes' death,  and  his  estate  was  held  to  be  subject  to  the 
residue.  In  Clayton's  Case,  which  represented  the  class  of 
creditors  whose  continued  dealings  consisted  both  in  draw- 
ing out  and  paying  in,  the  balances  constantly  fluctuating, 
but  on  the  whole  being  increased,  no  specific  appropria- 
tion of  payments  having  been  made,  it  was  held  that  the 
payments  made  not  only  before  further  deposits  must  be 
credited,  as  in  Sleech's  Case,  on  the  old  balance,  but  that 
the  payments  made  after  additional  deposits  were  also  to 
be  credited  to  the  oldest  items,  and  as  they  exceeded  the  old 
balance,  Devaynes'  estate  was  wholly  discharged. 

Under  the  same  principle,  where,  on  the  death  of  a  person,  his 
account  with  a  creditor  was  balanced,  and  formed  the  first  item  of 
the  new  account  with  his  widow,  who  continued  the  business,  pay- 
ments by  her  go  to  discharge  the  estate  of  the  decedent.'  So 
where  a  partner  retires,  and  another  partner  continues  the  busi- 
ness, making  purchases  from  an  old  creditor,  the  accounts  being 
blended  in  an  unbroken  series,  payments  may  be  credited  on  the 
firm's  debt.°  So  if  a  continuing  partner  assumed  the  old  debts.*  So 
in  case  of  a  dormant  partner,  the  dealings  being  continued  after 
his  retirement  as  an  unbroken  account,  payments  will  be  applied 

1  Sterndale  v.  Hankinson,  1  Sim.  Cush.  323;  Birkett  v.  McGuire,  31 
393.  Up.  Can.  C.  P.  430 ;  Fitch  v.  McCrim- 

2  Smith  V.    Wigley,  3  Moo.  &  Sc.    mon,  30  id.  183. 

174;  Hooper  v.  Keay,  1  Q.  B.  D.  178;       3  Baker  v.  Stackpoole,  9  Cow.  420 
City  Discount  Co.  v.  McLean,  L.  R.    (18  Am.  Dec.  508) ;  Lockw.  Rev.  Cas. 
9  C.  P.  692,  701 ;  Alcott  v.  Strong,  9   380. 
Vol.  1  —  33  513 


g  499.  CONDUCT  OF  THE  BUSINESS. 

to  the  earlier  items,  although  this  relieves  the  partner  of  whose 
existence  the  creditor  was  ignorant,'  or  if  the  creditor  does  not 
know  of  the  addition  of  the  incoming  partner.** 

In  Toulmin  v.  Copland,  2  CI.  &  Fin.  G81;  3  Younge  &C.  Ex.  Q'^Q, 
one  partner  was  to  contribute,  as  his  share  of  capital,  £10,000  in 
good  debts,  and  persons  owing  him  this  amount  to  become  custom- 
ers of  the  firm,  and  their  old  and  new  debts  were  kept  in  a  contin- 
uous account.  Payments  by  such  customers  to  the  extent  of 
£40,000  were  made,  and  it  was  held  that  they  should  be  applied  to 
the  earliest  items,  and  therefore  in  discharge  of  the  partner's  obli- 
gation, and  not  of  the  later  debts  due  the  firm. 

So  where  a  person  is  surety  to  P.,  for  advances  to  be  made  by 
him  to  J.  &  T.  T.  having  died,  and  thus  released  the  surety  from 
liability  for  further  advances,  but  the  dealings  being  continued  as  if 
nothing  had  happened,  subsequent  remittances  not  specifically  appro- 
priated will  be  applied  to  the  earlier  items,  thus  relieving  the  surety.^ 

§  498.  Change  in  debtor  firm. —  Where  the  change  in  the 
debtor  firm  is  by  the  introduction  of  a  new  partner,  pay- 
ments generally  by  the  new  firm  cannot  be  credited  upon 
the  old  account,  without  the  incoming  partner's  assent  to  a 
blinding  of  the  accounts. 

Thus,  where  A.  buys  out  B.'s  business,  and  assumes  his  debts, 
and  continues  to  deal  with  a  creditor  of  B.,  a  general  payment  on 
account  by  A.  cannot  be  credited  on  the  debt  of  B.,  without  A.'s 
consent;*  unless  the  accounts  are  blended  with  his  assent.  See 
Beale  v.  Caddick,  §  499,  and  two  cases  where  the  change  of  the 
debtor  firm  was  by  it  becoming  incorporated,  the  corporation  as- 
suming the  debts  of  the  firm." 

§  499.  Change  in  a  creditor  firm. — The  same  principles 
apply  where  the  change  is  in  the  creditor  firm. 

So  where  a  person  owes  a  firm,  and,  one  member  dying,  he  sub- 
sequently incurs  a  debt  to  the  surviving  partner,  payments  by  him 
not  appropriated  by  either  party  will  be  credited  upon  the  older 
account.* 

1  Brooke  v.  Enderby,  2  Bred,  &  B.       5  Whitwell  v.  Warner,  20  Vt.  425; 
70;  Newmarch  u.  Clay,  14  East,  239.    Allen  v.   Frunet  Min.  &  Smelt.  Co. 
•■i  Scott  V.  Beale.  6  Jur.  N.  S.  559.        73  Mo.  688. 
»Simson  v.  Cooke,  1  Binp^.  452.  « Starr  v.  Case,  59  Iowa,  491. 

*  Burland  v.  Nash,  2  F.  «fc  F.  687. 

514 


PAYMENT,  NOVATION  AND  MERGER.  §  500. 

In  Bodenhara  v.  Purchas,  2  B.  &  Aid.  39,  P.,  being  indebted  to 
the  firm  of  B,,  C,  &  D.,  bankers,  gave  tliera  a  bond,  with  surety,  to 
pay  the  debt,  and  such  other  sums  as  they  might  advance.  D. 
died,  and  G.  was  taken  into  the  firm  and  the  name  was  changed, 
but  the  old  balances  were  carried  into  the  new  account  without 
change.  Payments  after  D.'s  death  were  required  by  the  court  to 
be  credited  on  the  old  account.  Whether  these  payments  were  be- 
fore G.  became  a  partner  does  not  appear,  but  that  this  makes  no 
differeT'Ce  was  held  in  the  following  cases,  if  the  account  is  con- 
tinuous: 

In  Pemberton  v.  Oakes,  4  Russ.  151,  A.  was  indebted  to  B.,  C.  & 
D.,  bankers;  B.  died,  and  E.  took  his  place  in  the  firm,  and  A.  con- 
tinued dealing  with  them.  It  was  urged  that  his  payments  to  the 
new  firm,  having  a  new  partner,  could  not  be  applied  by  mere  in- 
tendment of  law  to  the  debt  of  the  old  firm,  but  it  was  held  the  rule 
in  Clayton's  Case  applied,  and  the  oldest  items  were  discharged  by 
it.  If  a  new  partner  is  added,  and  a  debt  against  an  old  customer 
is  carried  forward  and  treated  as  part  of  the  accounts  of  the  new 
firm,  general  pa3'ments  by  him  will  be  applied  to  the  old  balance 
if  uo  rights  of  sureties  or  third  persons  are  involved.' 

In  Beale  v.  Caddick,  2  H.  &  N.  326,  the  firm  of  H.  &  C.  owed  R., 
its  banker;  R.  transferred  the  account  to  the  M.  bank,  H.  assent- 
ing, which  one  partner  has  the  right  to  do;  the  M.  bank  had  an 
option  to  decline  any  account  within  a  j'ear.  Subsequent  pay- 
ments to  the  M.  bank  must  be  credited  on  the  old  account,  and  the 
bank  cannot  thereafter  exercise  the  option  and  credit  the  payments 
to  their  own  loans  to  H.  &  C. 

§  500.  account  not  continuous. —  But  where  the  ac- 
count does  not  appear  to  be  continuous  the  new  firm  is 
entitled  to  appropriate  general  payments. 

In  Jones  v.  Maund,  3  Younge  &  Coll.  347,  the  change  was  in  the 
creditor  firm.  A.  owed  a  secured  debt  to  B.,  C.  &  D.,  coal  mer- 
chants, trading  as  B.  &  Co.  B.  and  C.  died,  and  D.  afterwards 
retired,  selling  her  interest  to  E.,  who,  with  F.,  continued  the  busi- 
ness as  B.  &  Co.,  and  A.  continued  dealing  with  them  and  made 
payments.  It  not  being  shown  that  A.'s  debt  to  the  original  firm 
had  been  made  an  item  in  the  new  account,  it  was  held  that  A. 

1  Morgan  v.  Taxbell,  28  Vt.  498 ;  Bradley  v.  Richardson,  23  id.  720. 

515 


§  uOl.  CONDUCT  OF  THE  BUSINESS. 

had  no  right  to  require  his  general  payments  to  be  credited  on  the 
old  secured  debt. 

In  Taylor  v.  Post,  30  Hun,  44G,  A.  borrowed  money  from  a  firm, 
giving  it  a  mortgage  for  §4,000  for  the  present  debt  and  future 
advances;  one  partner  died,  and  his  administrators  and  surviving 
partners,  together  with  new  partners,  continued  the  business,  and 
it  was  agreed  that  the  mortgage  should  secure  further  loans.  Pay- 
ments by  A.  cannot  be  applied  to  the  old  debt,  for  the  second  firm 
is  not  the  same  as  the  old,  nor  a  continuation  of  it. 

S  501.  The  creditor,  however,  mav  dissent  from  con- 

tinning  the  account.  If  he  does  not  assent  to  making  the 
old  balance  an  item  in  the  new  account,  payments  Avill  not 
necessarily  go  upon  the  old  account.  Following  is  the  lead- 
ing case  on  this  point, 

B.  &  J.  Ingham,  bankers,  at  Huddersfield,  were  indebted  to 
Bruce  &  Co.,  bankers,  in  London,  on  a  running  account  for  ad- 
vances to  them  and  their  customers  on  their  account.  B.  Ingliam 
died,  but  his  surviving  partners  continued  business.  Bruce  &  Co. 
at  first  continued  the  account  without  a  break,  crediting  subse- 
quent payments  generally,  but  without  notifying  the  debtors 
thereof;  but  by  the  advice  of  their  solicitors  changed  this  and  sent 
an  account  to  the  debtors  thus,  "Debtors,  Messrs.  B.  &  J.  Ingham 
&  Co.  (old  account),  in  account  with  Bruce  &  Co.,  creditors,"  and 
the  first  item  on  the  debit  side  was  the  last  balance  sent  previous 
to  the  death  of  B.  Ingham.  They  also  sent  a  second  account  in 
the  same  form,  styling  it  the  "  new  account,"  and  kept  the  accounts 
separate  on  their  books.  The  debtors  did  not  object  to  this,  but 
on  their  own  books  kept  but  one  account.  The  court  held  that 
where  the  account  is  continued  without  a  break  b}'  both  parties 
payments  must  go  against  the  oldest  item;  but  that  the  plaintiffs 
had  the  right  to  distinguish,  and  were  not  precluded  by  the  entries 
in  their  private  books  not  communicated  to  the  debtors.' 

In  Burns  v.  Pillsbury,  17  N.  H.  6Q,  a  person  who  had  made  con- 
signments to  a  firm,  and  was  its  creditor  on  account  thereof,  con- 
tinued to  consign  after  dissolution,  of  which  he  had  notice,  to  the 
continuing  partner.     A  distinction  was  made  between  the  case  and 

1  Sinison  v.  Ingham,  2  B.  &  C.  65;  change  in  creditor  firm  by  the  ad- 
3  Dow.  &  R.  249.  See,  also,  Morgan  dition  of  a  partner,  the  accounts 
V.    Tarbell,    28    Vt.    498,   501,    of   a    being  separated. 

516 


PAYMENT,  NOVATION  AND  MERGER.       §  503. 

cases  of  banldng  liouses,  which  are  often  eontiuned  through  gpn- 
erations,  and  it  was  held  that  the  consignor  was  not  compelled  to 
credit  remittances  to  the  old  account  unless  proved  to  be  of  money 
of  the  old  firm.  This  case  proceeds  on  the  basis  that  transactions, 
after  a  change  of  firm,  ^xq  prima  facie  deemed  to  be  the  independ- 
ent transactions  of  the  new  firm,  except  in  banking  houses,  and 
that  merely  striking  a  balance  and  carrying  it  to  the  new  account 
does  not  affect  the  original  debt.  This  distinction  might  also  rec- 
oncile Pemberton  v.  Oakes  and  Jones  v.  Maund,  supra. 

In  Botsford  v.  Kleinhaus,  29  Mich.  332,  plaintiffs  were  shipping 
wheat  to  B.,  B.  &  H.  as  their  factors;  afterwards  H.  retired  and  the 
firm  became  B.  &  B.  Plaintiffs  continued  their  shipments,  and  B. 
&  B.  transferred  the  old  account  to  their  books  and  continued  it 
without  change.  On  the  old  firm  being  sued  by  plaintiffs,  it  was 
held  that  plaintiffs'  assent  to  the  transfer  and  continuance  of  the 
account  must  be  shown  in  order  to  include  inquiry  into  the  deal- 
ings with  the  new  firm  in  the  action,  and  that  the  plaintiffs  had  a 
right  to  assume  that  the  business  would  be  kept  separate  and  were 
not  bound  by  the  unauthorized  entries. 

NOVATION. 

§  502.  When  a  firm  dissolves,  whether  the  dissolution  be 
by  the  retirement  of  an  old  partner  or  the  introduction  of  a 
new  one,  or  both,  and  one  partner  or  the  new  firm  assumes 
the  debts  of  the  old,  the  dissolution  and  agreement  do  not 
ipso  facto  release  the  old  liability  to  the  creditor  nor  create  a 
new  one.  To  accomplish  that  result  action  or  assent  on  the 
part  of  the  three  parties:  the  original  debtors,  the  person  or 
persons  who  assume  the  debts,  and  the  creditor,  is  necessary. 

We  have  already  seen  that  the  release  of  one  partner  by  a 
creditor  may  release  the  entire  firm,^  when  not  accompanied 
by  a  promise  of  the  other  partners  to  pay  or  a  reservation  of 
rights  as  against  them.^  The  question  in  this  chapter  is, 
what  is  a  sufficient  substitution  of  debtors  or  agreement  to 
look  to  some  of  the  partners  and  discharge  the  others? 

§  503.  Creditor  must  assent. —  An  agreement  between  the 
old  and  new  partners  that  the  latter  will  assume  or  will 

1  §  385.  2  §  387. 

517 


§  603.  CONDUCT  OF  THE  BUSINESS. 

pay  their  share  of  the  dehts,  or  that  the  new  firm  will  as- 
sume the  debts,  if  made  witliout  the  creditor  being  a  party, 
or  without  notice  to  or  consultation  with  and  assent  by  him, 
cannot  be  taken  advantage  of  by  him.  It  does  not  convert 
the  separate  into  a  joint  debt,  but  is  merely  like  tlie  agree- 
ment of  one  partner  with  another  to  pay  a  debt  of  the  firm. 
The  principle  that  a  promise  made  to  one  person  for  the 
benefit  of  another  can  be  sued  upon  by  the  latter  does  not 
apply,  for  this  is  clearly  not  a  promise  between  the  partners 
for  the  benefit  of  the  creditor,  but  is  purely  for  their  own 
benefit,  and  as  to  him  is  res  inter  alios  acta} 

Where  the  joint  property  is  a  leasehold,  and  one  assigns  his  in- 
terest to  the  other,  the  landlord  may  recover  the  entire  rent  from 
the  latter,  for  he  is  liable  for  half  as  tenant  in  common  by  privity 
of  estate  and  of  contract,  and  half  by  privity  of  estate.' 

In  Wild  V.  Dean,  3  Allen,  579,  it  was  held  that  the  rule  that  a 
creditor  cannot  prove  his  debt  against  the  separate  estate  of  a  part- 
ner who  had  bought  out  his  copartner  and  given  him  a  bond  to 
pay  all  the  debts  is  not  changed  by  the  creditor's  having  notified 
such  partner,  or  both  of  them,  that  he  elected  to  treat  it  as  the 
separate  debt  of  such  partner,  without  proof  of  the  latter's  assent. 

1  Following  are  cases  where  the  Following  are  cases  where  the  dis- 
new  firm  included  an  incoming  part-  solution  was  by  the  retirement  of  a 
ner:  Ex  parte  Williams,  Buck,  13;  partner  without  the  addition  of  a 
Ex  parte  Freeman,  id.  471 ;  Ex  parte  new  one:  Ex  parte  Bradbury,  4  Deac. 
Fry,  1  01.  &  J.  yO;  Ex  parte  Venker,  203;  Robb  v.  Mudge,  14  Gray,  534; 
2  M.  D.  &  D.  511;  Ex  parte  Peele,  C  Wild  v.  Dean,  3  Allen,  57U;  Fowle  v. 
Ves.  G02;  Vera  v.  Ash  by,  10  B.  &  C.  Torrey,  131  Mass.  289;  Ay  res  v.  Gal- 
288-.  Re  Isaacs,  3  Sawy.  35;  6  Bankr.  lup,  44  Mich.  13;  Spaunhorst  v.  Link, 
Reg.  92;  Lee  v.  Fontaine,  10  Ala.  4li  Mo.  197;  Merrill  v.  Green,  55 
755;  44  Am.  Dec.  505;  Hicks  v.  Wy-  N.  Y.  270;  Macintosh  v.  Fatman,  38 
att,  23  Aik.  55;  Goodenow  v.  Jones,  How.  Pr.  145;  Campbell  v.  Lacock, 
75  111.  48;  Locke  v.  Hall,  9  Me.  133;  40  Pa.  St.  448.  In  Shoemaker  v. 
Manny  r.  Frasier,  27  Mo.  419;  Farm-  King,  40  Pa.  St.  107,  a  firm  sold  out 
alee  v.  Wiggenhorn,  5  Neb.  323;  its  entire  business  to  a  third  person, 
Morehead  v.  Wristou,  73  N.  Ca.  398;  who  assumed  the  debts,  and  a  cred- 
Torrens  V.  Campbell,  74  Pa.  St.  470;  itor  attempted  to  sue  the  buyer  and 
Kounlz  V.    Holtliouse,    85    id.    233;    failed. 

Piano  Co.  v.  Bernard,  2  Lea,  358,  3G0 ;       2  Dwight  v.  Mudge,  13  Gray,  23. 
McKeand  v.  Mortimore,  11  Up.  Can. 
Q.  B.  423. 

518 


PAYMENT,  NOVATION  AND  MERGER.       §  504. 

As  the  debtor  cannot  convert  a  joint  into  a  separate  debt  without 
the  creditor's  assent,  neither  can  the  creditor  without  the  debtor's 
assent.  The  agreement  is  only  a  private  executory  agreement  be- 
tween the  partners,  to  regulate  their  duties  between  themselves,  to 
which  the  creditors  were  neither  parties  nor  privies.  The  cases 
which  have  gone  the  farthest  show  a  promise  by  the  partner  to 
take  on  himself  the  burden  of  payment. 

In  Parmalee  v.  Wiggenhorn,  5  Neb.  322,  C.  had  agreed  to  sell  all 
the  produce  of  his  mill  for  a  year  to  the  plaintiff.  He  then  sold 
half  the  mill  to  W.  and  formed  a  partnership  with  him  and  con- 
tinued to  deliver  to  plaintiif.  He  then  sold  the  other  half  to  Gr., 
who  knew  of  the  contract  and  assumed  all  C.'s  responsibilities,  and 
W.  &  Gr.  agreed  to  continue  to  deliver  the  produce,  but  after- 
wards refused  to  do  so.  These  facts  were  held  not  to  show  a  cause 
of  action  against  the  new  firm  in  favor  of  plaintiff,  for  there  must 
be  a  novation  of  all  the  parties,  extinguishing  the  old  contract  and 
creating  a  new  liability  on  some  consideration,  and  a  mere  receipt 
of  payment  by  the  new  firm  does  not  raise  a  presumption  of  an 
agreement  to  be  liable  for  the  breach.* 

§  50i.  -contrary    authorities. —  Some    other    states, 

however,  repudiate  this  doctrine,  in  part  at  least,  that  the 
creditor  cannot  take  advantage  of  the  agreement  between 
the  new  and  old  firms,  by  which  the  latter  assumes  the 
debts  and  agrees  to  pay  them.^ 

And  others  hold  that  where  the  new  firm  receives  assets 
for  which  their  assumption  of  the  debts  was  part  considera- 

1  Where  a  partner,  indebted  to  one  there  was  no  incoming  partner: 
Y.,  retired,  in  consideration  of  wliich  Hood  v.  Spencer,  4 McLean,  108;  Hoyt 
the  remaining  partners  assumed  this  v.  Murphy,  18  Ala.  316,  allowing  a 
debt  to  Y..  and  Y.  thereupon  orally  set-off  of  the  claim;  Devol  v.  Mcln- 
released  tlie  retiring  partner,  and  an  tosh,  23  lud.  529;  Hardy  u  Blazer, 
agent  of  the  remaining  partners  by  29  id.  226;  Dunlap  v.  McNeil,  35  id. 
mistake  placed  the  amount  of  tlie  316;  Haggerty  u.  Jolmston,  48  id.  41; 
debt  on  the  books  to  the  credit  of  X.  Way  v.  Fravel,  61  id.  162;  Powers  u 
&  Y..  instead  of  to  Y.  alone,  but  X.  Fletcher,  84  id.  154.  Following  are 
claime  1  no  interest  in  it,  Y.  can  the  cases  where  there  was  an  incom- 
avail  himself  of  the  credit  and  hold  ing  partner:  Poole  v.  Hintrager,  60 
the  remaining  partners.  There  is  a  Iowa,  180;  Colt  v.  Wilder,  1  Edw. 
complete  novation.  York  v.  Orton,  Ch.  484;  Arnold  v.  Nichols,  64  N.  Y. 
65  Wis.  0.  in.     See  Smead  v.  Lacey,  1  Disney, 

2  Following   are  the  cases  where  239,  noticed  fully  under  §  510. 

519 


§  605.  CONDUCT  OF  THE  BUSINEiS. 

tion,  and  agrees  to  apply  these  assets  to  the  debts,  this  prom- 
ise inures  to  creditors,^ 

In  Arnold  v.  Nichols,  64  N.  Y.  117,  a  person  in  business  by 
himself  took  in  a  partner  and  transferred  the  assets  to  the  firm  in 
consideration  that  the  firm  would  pay  the  debts  of  the  business 
and  apply  the  assets  to  such  debts.  It  was  held  that  a  creditor 
could  sue  the  firm  on  such  an  agreement,  as  being  made  for  hib  oene- 
fit,  for  the  agreement  was  not  primarily  for  the  benefit  of  the 
original  debtor.'' 

In  Odborn  v.  Osborn,  36  Mich.  48,  C,  of  A.,  B.  &  C,  sold  his  in- 
terest to  D.,  who  assumed  C.'s  share  of  the  liabilities  and  took  his 
place  in  the  firm.  A  creditor  of  A.,  B.  &  C,  then  sued  A.,  B.  &  D., 
averring  a  promise  by  them  to  pay  the  debt,  and  it  was  held  she 
could  recover,  but  that  this  was  not  on  the  principle  of  a  promise 
made  between  the  partners  for  her  benefit,  and  that  payments  on 
the  debt  by  the  new  firm  was  evidence  of  a  substitution  by  consent 
of  both  parties.  That  her  husband,  who  was  also  a  member  of  the 
firm,  made  the  payments  is  immaterial,  since  this  is  supposed  to  be 
known  to  all  the  partners  where  no  circumstances  of  secrecy  are 
shown.  It  is  to  be  noticed  of  this  case,  however,  that  the  retiring 
partner  had  assigned  to  the  creditor  all  claim  he  had  against  the 
new  partners  on  the  agreement  between  them. 

In  Francis  v.  Smith,  1  Duv.  121,  the  retiring  partner  having 
obtained  a  judgment  against  the  incoming  partner  on  his  agree- 
ment to  pay  debts,  a  creditor  of  the  firm  was,  on  the  retiring 
partner's  consenting  thereto,  entitled  to  be  substituted  to  such  judg- 
ment. 

§  505.  Consideration. —  The  creditor's  promise  to  one  part- 
ner to  release  him,  although  made  after  dissolution  upon 

1  See  Torrens  v.  Campbell,  74  Pa.  effects.     On  taking  the  effects  he  br- 

St.  470,  474-6 ;  Kountz  v.  Holthouse,  comes  liable  to  the  attorneys.  McKil- 

85  Pa.  St.  233;  and  Arnold  v.  Nichols,  lip  v.  Cattle,  13  Neb.  477. 
64  N.  Y.  117.     And  see  Hopkins  v.       ^S.  P.  Turner  v.  Jaycox,  40  N.  Y. 

Johnson,  2  La.  Ann.  842;  Sedam  v.  470,  474;  but    contra,    where    there 

Williauis,   4  McLean,  51 ;  Marsh   v.  was  no  incoming  partner,  Merrill  v. 

Bennett,  5  id.  117.     A  firm  indebted  Green,  55  N.  Y.  270.     Possibly  Ala- 

for  legal   services  was  dissolved  by  bama  and  Michigan  also  make  a  dis- 

decree  fixing  the  shares  of  each  part-  tinction  between  cases  whi-re  there 

ner,  and  adjudging  tliat  one  partner  is  and  is  not  an  incoming  partner. 

on  paying  this  debt  should  take  the  Compare  the  foregoing  list  of  cases. 

520 


PAYMENT,  NOVATION  AND  MERGER.  §  500. 

the  retirement  of  such  partner,  when  nol  accompanied  by  a 
promise  of  the  other  partner  to  the  creditor  to  assume  the 
entire  debt,  or  by  a  change  of  security,  is  a  nudum  imctum, 
because  founded  on  no  consideration  whatever.^  So  a  mere 
promise  by  the  new  concern  to  pay  the  debt  is  a  nudum  pac- 
tum; as  where  a  firm  indebted  to  the  plaintiff  became  incor- 
porated, the  president  of  the  corporation  promised  a  creditor 
of  the  firm  that  it  would  pay  the  debt,  the  promise  is  with- 
out consideration.^  But  if  the  other  partner  promise  the 
creditor  to  assume  and  pay  the  entire  debt,  and  the  creditor 
promises  to  look  to  him  alone,  a  substitution  of  debtors  is 
effected,  and  the  other  partner  is  released.  This  is  founded 
on  the  doctrine  that  the  sole  liability  of  one  of  two  debtors 
may,  under  many  circumstances,  be  more  beneficial  and 
convenient  than  the  joint  liability  of  two,  and  therefore  the 
change  is  founded  upon  a  valuable  consideration;  and 
whether  it  was  actually  a  benefit  in  each  particular  case 
will  not  be  looked  into,  but  the  agreement  will  be  sustained.' 
§  506.  Original  debtor  still  liable.— In  the  absence  of  a 
novation,  the  original  debtor  or  debtors  continue  liable,  of 
course,  for  a  debtor  cannot  affect  his  own  sole  liabihty  by 

1  Thomas  v.  Shillabeer,  1  M.  &  W.  Early  v.  Burt,  68  Iowa,  716;  Wild  v. 
124;  Clark  v.  Billings.  59  Ind.  508;  Dean,  3  Allen,  579,  581.  And  see 
Eagle  Mfg.  Co.  v.  Jennings,  29  Kan.  Walstrom  v.  Hopkins,  103  Pa.  St. 
657  (44  Am.  Rep.  6J8);  Chase  v.  118;  and  Clark  v.  Billings,  59  Ind. 
Vaughan,  30  Me.  412;  Wildes  v.  508.  Clark  v.  Brooks  (Pa.  Com.  PI. 
Fessenden,  4  Met.  12;  Walstrom  v.  1887),  19  Weekly  Notes,  333,  that  a 
Hopkins,  103  Pa.  St.  118;  Collyer  v,  reltase  of  retiring  partner,  and  tak- 
Moulton,  9  R.  I.  90.  ing  note  of  the  new  firm,  is  not  sus- 

2  Georgia  Co.  v.  Castleberry,  43  Ga.  tained  by  any  consideration  if  no  new 
1S7.  partner  has  come  in.     The  cases  of 

«  Thompson  v.  Percival,  5B.  &  Ad.  Lodge  v.  Dicas,  3  B.  &  Aid.  611,  and 

935;    Lyth  v.    Ault,   7  Ex.  C67;   Re  David^v.  Ellice,  5  B.  &  C.  l9o ;  7  Dow. 

Clap,  2  Low.  226;  Backus  v.  Fobes,  &  Ry.  690;  aff' g  1  C.  &  P.  368,  which 

20  N.  Y.  201;  Collyer  v.  Moulton,  9  also  held  that  such  mere  promise,  no 

R.  I.  90;  ^tna  Ins.   Co.  v.  Peck,  28  note  being  given,  was  not  a  consid- 

Vt.  93.     Contra,  that  being  merely  a  eration,  are  in  this  respect  overruled 

promise  to  pay  his  own  debt,  it  is  no  by  Thompson  v.   Percival,    5  B.  & 

consideration  for  a  release  of  the  co-  Aid.   925 ;  Lyth  v.   Ault,   7  Ex.  667, 

partner  where  no  new  note  or  exteu-  and  Hart  v.  Alexander,  2  M,  &  W. 

sion  of  time  or  other  change  is  made,  484. 

521 


§  507.  CONDUCT  OF  THE  BUSINESS. 

going  into  partnership.  And  the  same  principle  apphes  to 
executory  contracts;  as  where  services  are  agreed  to  be 
rendered  to  a  person,  or  goods  supphed  to  him,  and  he  takes 
in  a  partner,  and  the  services  or  goods  are  received  by  the 
partnership,  the  original  debtor  still  continues  chargeable 
on  the  contract. 

Thus,  where  the  plaintiff  contracted  to  enter  the  emplojnnent  of 
defendant,  and  defendant  took  in  a  partner;  or,  if  a  firm,  and  it 
took  in  a  new  partner,  and  the  services  were  then  rendered  to  the 
firm,  the  original  contract  is  not  extinguished,  and  a  new  one  with 
the  firm  substituted,  and  the  continuance  of  his  duties  by  the  em- 
ployee is  not  a  waiver  of  the  contract.' 

So,  where  T.  engaged  P.  to  board  one  of  his  hands,  and  T.  after- 
wards took  in  C.  as  a  partner,  and  the  hand  became  the  employee 
of  the  firm,  P.  can  sue  T.  alone  for  subsequent  board,  until  he  has 
knowledge  of  such  facts  as  render  it  imperative  upon  him  to 
change  his  mode  of  charging.* 

So,  if  a  tenant  from  year  to  year  takes  in  a  partner  in  the  busi- 
ness for  which  the  premises  were  used,  this  does  not  alter  his  sole 
liability  to  his  landlord.' 

§507.  Incoming  partner  not  liable  for  old  debts. —  The 

more  difficult  question  arises,  what  facts  are  sufficient  to 
show  an  agreement 'by  the  creditor  to  discharge  some  of  the 
partners  and  look  to  the  rest  as  his  sole  debtors?  A  substi- 
tution of  debtors  does  not  require  an  express  agreement,  but 
results  from  the  intention  of  the  parties  gathered  from  their 
acts  and  declarations,  inconsistent  with  a  continuance  of  the 
original  liability. 

A  person  becoming  a  member  of  an  existing  firm,  or  form- 
ing a  pai-tnership  with  another  in  the  latter's  existing  busi- 
ness, does  not  thereby  become  liable  for  the  debts  already 
incurred,  nor  does  the  new  firm  become  liable  for  them.  An 
agreement,  express  or  implied,  is  necessary  to  create  such 
liability,  not  only  between  the  creditors  and  the  new  firm 
but  also  as  between  the  jDartners;  that  is  to  say,  the  pre- 

iFifieia  V.  Adams,  3  Iowa,  487;  SBarlovv  v.  Wainwright,  23  Vt.  88 
Froun  u.  Davis,  97  Ind.  401.  (53  Am.  Dec.  79).    See  §  503. 

2Taggart  v.  Phelps,  10  Vt.  318. 

533 


PAYMENT,  NOVATION  AND  MERGER. 


)07. 


sumption  is  against  the  assumption  of  such  hability,  and  the 
burden  to  prove  it  is  upon  the  one  who  asserts  it.  This  is 
hke  the  principle  governing  the  cases  where  a  contract  is 
made  with  one  partner,  or  a  credit  is  extended  to  one  of  a 
firm,  upon  which  the  copartners  are  not  Hable.^ 

In  Gaus  v.  Hobbs,  18  Kan.  500,  P.  and  H.  met  on  September 
9tli,  and  conversed  about  forming  a  partnership  but  came  to  no 
agreement.  Sliortly  afterwards  P.  bought  from  plaintiffs  the  goods 
for  which  this  action  was  brought,  in  the  name  of  P.  &  H.  On 
October  19th,  P.  and  H.  met  again  and  formed  a  partnership,  P. 
putting  in  the  goods  as  part  of  his  capital,  H.  being  ignorant  of 
the  facts  of  the  purchase,  and  it  was  held  that  H.  was  not  liable.  It 
was  further  said,  p.  501,  that  even  had  H.  learned  of  the  facts,  he 
would  not  have  been  bound  to  repudiate  accountability,  for  an 
incoming  partner  is  not  obliged  to  act  to  prevent  responsibility, 
but  must  act  in  order  to  incur  one. 

In  Shafer's  Appeal,  99  Pa.  St.  246,  Shafer  owed  the  banking  firm 


lAtwood  V.  Lockliart,  4  McLean, 
350;  Butler  v.  Henry,  48  Ark.  551; 
Citizens'  Bank  v.  Hine,  49  Conn  236; 
Bryan  v.  Tooke,  CO  Ga.  437;  Bracken 
V.  Ellsworth,  64  id.  213;  Morris  v. 
Miirqueze,  74  id.  86;  Watt  v.  Kirby, 
15  111.  200;  Wright  v.  Brosseau,  73 
id.  381 ;  Goodenow  v.  Jones,  75  id.  48 ; 
Smith  V.  Hood,  4  111.  App.  360; 
Wheat  V.  Hamilton,  53  Ind.  256; 
Tifield  V.  Adams,  3  Iowa,  487;  Steru- 
burg  V.  Callanan,  14  id.  251 ;  Cad- 
wallader  v.  Blair,  18  id.  420;  Waller 
V.  Davis,  59  id.  103;  Cross  u.  National 
Bank,  17  Kan.  336;  Gaus  v.  Hobbs, 
18  id.  500;  Duncan  v,  Lewis,  1  Duv. 
(Ky.)  183;  Meador  v.  Hughes,  14 
Bush,  653;  Mosseau  v,  Thebens,  19 
La.  Ann.  516;  Beall  v.  Poole,  27  Md. 
615;  GudJ  V.  Belcher,  119  Mass,  257; 
Lake  v.  Muuford,  4  Sm.  &  Mar. 
312;  Fagan  v.  Long,  30  Mo.  222; 
Deere  v.  Plant,  43  id.  60;  Wiigus  v. 
Lewis,  8  Mo.  App.  336;  Parnialee  v. 
Wiggenhorn,  6  Neb.  322;  Howell  v. 


Sewing  Machine  Co.  12  id.  177; 
Durand  v.  Curtis,  57  N.  Y.  7 ;  Sizer 
V.  Ray,  87  id.  220 ;  Fuller  v.  Rowe, 
57  id.  23;  Pierce  v.  Alspaugh,  83  N. 
Ca.  258;  Brooke  v.  Evans,  5  Watts, 
196;  Babcock  v.  Stewart.  58  Pa.  St. 
179;  Sham  burg  u  Ruggles,  S3  id.  148; 
Hart  V.  Kelley,  83  id.  286 ;  Morrison's 
Appeal,  93  id.  326;  Shafer's  Appeal, 
99  id.  246;  Holmes  v.  Caldwell,  8 
Rich.  (S.  Ca.)  L.  247;  Piano  Co.  v. 
Bernard,  2  Lpa(Tenn.),  358:  Bank  v. 
Gray,  12  id.  459;  Adkins  v.  Arthur, 
33  Tex.  431,  440;  Hart  v.  Tomlinson, 
2Vt.  101;  Poindexter  r.  Waddy,  6 
Munf.  418  (8  Am.  Dec.  740);  Peters  v. 
McWilliams.  78  Va.  567;  McLinden 
V.  Wentworth,  51  Wis.  170,  181; 
Hine  v.  Beddome,  8  Up.  Can.  C.  P. 
381;  McKeaiid  v.  Mortimore,  11  Up. 
Can.  Q.  B.  428.  For  Louisiana  law 
as  to  liability  of  widow  who  has  ac- 
cepted the  succession  of  her  husband 
for  prior  debts  of  the  firm,  see  Hen- 
derson V.  Wadsworth,  115  U.  S.  264 


523 


§  508.  CONDUCT  OF  THE  BUSINESS. 

of  D.  &  Co.  on  a  note  on  which  he  had  paid  them  usurious  inter- 
est. One  of  the  partners  having  died  the  survivors  and  another 
formed  a  new  firm  under  the  old  name,  but  assumed  none  of  the 
old  debts.  Shafer  borrowed  money  of  the  new  firm  wherewith  to 
pay  his  debts  to  the  old.  It  was  held  that  he  could  nut  compel  the 
application  of  the  usury  paid  the  old  firm  on  account  of  the  debt  to 
the  new.  The  new  partner  cannot  be  prejudiced  by  the  claim 
against  the  old  firm. 

In  Morrison's  Appeal,  93  Pa.  St.  326,  B.,  of  B.  &  L.,  bought  out 
L.,  but,  while  still  in  debt  to  L.  fur  part  of  the  purchase  money, 
failed.  While  B.  was  still  in  business  he  gave  accommodation 
notes  to  L.,  then  trading  under  the  name  of  L.  &  W.,  which  L. 
agreed  to  protect.  Afterwards  L.  took  in  T.  and  M.  as  partners, 
still  under  the  name  of  L.  &  W.  As  the  note  matured,  B.  gave 
other  notes  to  L.  &  W.  to  take  up  the  old  ones,  and  the  new  firm 
indorsed  and  used  them  for  that  purpose,  and  when  B.  failed  these 
notes  were  proved  against  his  estate.  As  the  new  firm  of  L.  &  W. 
received  none  of  the  proceeds  of  the  renewal  notes,  it  was  held  that 
they  owed  nothing  to  B.,  and  therefore  could  prove  against  his 
estate  a  claim  for  goods  sold  by  them  to  B. 

Where  a  claim  was  placed  for  collection  in  the  hands  of  a  firm  of 
attorneys  who  afterwards  dissolved  and  formed  a  new  firm  with 
another  partner,  and  the  new  firm  dissolved  before  any  steps  to 
collect  the  claim  were  taken,  and  the  collection  was  then  made  by 
the  original  partner  of  the  new  firm,  the  incoming  partner  was 
held  not  to  be  liable  to  the  client  for  the  amount,' 

§  508.  Even  where  the  partners  have  before  forminjij  the 
partnership  made  contracts,  each  upon  his  individual  credit, 
though  with  the  intention  and  under  the  agreement  to  con- 
tribute the  goods  or  money  thereby  obtained  to  the  projected 
firm,  and  has  brought  them  in  as  agreed,  the  firm  or  the 
other  partners  are  not  liable  on  such  contracts.  The  part- 
nership until  actually  formed  is  inchoate,  and  the  ngency 
of  each  partner  to  act  for  the  others  has  not  begun.  The 
fact  that  the  new  firm  received  the  benefit  of  the  contracts 
does  not  create  a  liability.  These  principles  have  been  ex- 
amined in  treating  of  contract  with  one  partner,  and  inchoate 
"partnerships. 

1  Ayrault  v.  Chamberlin,  26  Barb.  83. 

524 


PAYMENT,  NOVATION  AND  MERGER.  §  508. 

A  quite  usual  application  of  the  doctrine  is  where  a  person 
leases  property  for  the  purposes  of  his  business,  and  then 
takes  in  partners.  The  latter  do  not  thereby  become  liable 
for  the  rent  merely  by  becoming  partners  and  occupying.^ 

Where  the  order  is  for  a  definite  quantity  of  goods,  the 
incoming  partners  are,  of  course,  not  liable  for  subsequent  de- 
liveries under  the  contract  under  the  principles  stated  in  the 
foregoing  sections; "'  but  even  here,  if  the  subsequent  dehvery 
be  made  to  and  on  the  credit  of  the  firm,  and  received  by 
them,  not  on  behalf  of  the  original  contractor,  but  on  joint 
account,  at  the  request  of  the  original  contractor,  for  the 
latter,  such  request  renders  the  firm  liable  for  the  price,  for 
the  contractor  has  the  same  power  to  receive  them  on 
joint  account,  wdiere  the  title  has  not  already  passed  to  him, 
that  he  has  to'make  a  new  contract  of  purchase  for  the  firm.'' 

Where  the  contract  is  not  for  the  delivery  of  a  definite 
number  or  amount  of  goods,  but  is  a  continuing  contract 
for  delivery  at  a  certain  price,  the  goods  supplied  after  the 
partnership  has  been  formed  are  deemed  to  be  delivered  as 
upon  a  tacit  contract  with  the  new  firm.* 

And  in  such  cases,  if  the  change  is  in  the  retirement  of  a  partner, 
he  is  not  exonerated  by  the  fact  of  notice  to  the  shipper  that  the 

iDurand  v.  Curtis,  57  N.  Y.  7;  into  partnership.  Subsequent  de- 
Pierce  v,  Alspaugh,  83  N.  Ca.  258;  liveries  were  held  to  be  on  the  credit 
Brooke  v.  Evans,  5  Watts,  196 ;  Bar-  of  the  firm  and  on  its  implied  agree- 
low  V.  Wainwright,  22  Vt.  88  (52  men  to  pay  for  them;  although  had  A. 
Am.  Dec.  79).  And  see  Lucas  v.  contracted  at  first  for  the  entire  quan- 
Coulter,  104  Ind,  81;  Wilgus  v.  tity,  he  alone  would  have  been  liable 
Lewis,  8  Mo.  App.  336;  Jackson  v.  for  them.  Helsby  r.  Mears,  5  B.  & 
Salmon,  4  Wend.  327.  C.    504  (as  explained    in    Beale  v. 

2Goodenow    u  Jones,   75    111.48;  Mouls,    10    Q.    B.    976),    where  the 

Duncan  v.  Lewis,  1  Duv.  183;  Beale  owner  of  certain  coaches  contracted 

V.  Mouls,  10  Q.  B.  976.  with  B.  for  the  carriage  of  parcels 

» Smith  V.  Hood,  4  111.  App.    360;  which  B.  was  in  the  habit  of  send- 

Watt  V.  Kirby,  15  ILL  200;  Johnson  ing  to  various  places.     This  contract 

V.  Barry,  95  id.  483.  was  held  to  bind  incoming  partners. 

4  Dyke  r.  Brewer,  2  Car.  &  K.  828,  Compare,    also,  Winston  v.    Taylor, 

where  bricks  were  to  be  supplied  by  28  Mo.  82,  noticed  at  the  end  of  this 

plaintiff  to  A.  at  a  certain  price,  but  section.  s 

of  no  definite  quantity.     A.  took  B. 

525 


§  509.  CONDUCT  OF  THE  BUSINESS. 

property  so  bailed  is  turned  over  to  the  new  firm,  for  he  cannot 
release  himself  without  the  consignor's  assent.' 

But  in  Winston  v.  Taylor,  28  Mo.  82,  where  cattle  were  delivered 
to  be  herded,  and  some  were  lost  after  one  bailee  had  retired,  it 
was  held  that  if  property  is  not  bailed  for  a  definite  time,  the  bailor, 
on  notice  of  retirement  of  a  partner,  must  remove  his  property 
within  a  reasonable  time,  or  look  to  the  new  firm  alone.  Directing 
the  new  firm  to  sell  and  remit  was  held  to  be  taking  a  control  that 
absolves  the  ex-partner.' 

And  where  a  person  holds  the  merchandise  or  other  prop- 
erty of  another  for  sale  for  him,  for  example,  as  agent  or 
factor,  and  takes  in  partners,  and  the  new  firm  sells  the 
goods  so  consigned,  they  are  liable  for  the  proceeds  to  the 
consignor  or  owner,  for  the  firm  only  takes  the  title  of  the 
original  consignee.'' 

§  509. note  of  new  firm  without  consent  of  incoming 

partner. —  If,  after  the  new  partner  is  taken  in,  one  or  all  of 
the  original  partners  make  a  note  or  bill  in  the  name  of  the 
new  firm  for  a  debt  of  the  old,  without  the  assent  of  the  in- 
coming partner  who  had  not  assumed  the  old  debts,  this 
note  is  in  violation  of  the  rights  of  the  new  firm,  and 
is  governed  by  the  same  rules  that  apply  to  any  other  note 
or  use  of  the  partnership  name  by  one  partner  without  au- 
thority for  his  own  benefit.  That  is,  the  note  does  not  bind 
the  non-assenting  partners  in  the  hands  of  the  payee  or  any 
one  holding  under  him,  other  than  a  bona  fide  indorsee  be- 
fore maturity  without  notice.* 

Where,  however,  the  members  of  C.  &  Co.,  with  other  persons, 
formed  another  firm  of  H.  &  Co.,  and  C.  &  Co.  had  a  sum  standing  to 

iDean    v.     McFaul,    23    Mo.    76;  Wilson  v.  Bailey,  9  Dowl.  P.  C.  18 

Holden  V.  McFaul,  21   id.  215;  Hall  Citizens'  Bank  u.  Hine,  49  Conn.  236 

V.  Jones,  56  Ala.  493.  Baxter  v.    Plunkett,    4  Houst.    450 

2  Hall  V.  Jones,  56  Ala.  493.  Bryan  v.  Tooke,  60  Ga.  437 ;  Wright 

»Dixv.  Otis,  5  Pick.  38 ;  Piano  Co.  v.  Brosseau,    73  111.    381;  Waller  r. 

V.  Bernard,  2  Lea,  358.  Davis,  59  Iowa,  103 ;  Guild  v.  Belcher, 

♦Sliirreff  u.  Wilks,  1  East,  48;  £"03  119  Mass.    257;    Fagan    v.   Long,    30 

parte  Goulding,  2  Gl.  &  J.  118;  Wil-  Mo.  222;  Howell  v.  Sewing  Machine 

son  V.  Lewis,  2  M.  &  G.  197;  s.  c.  as  Co.  12  Nebr.  177. 

526 


PAYMENT,  NOVATION  AND  MERGER.       g  510. 

its  credit  on  the  books  of  H.  &  Co.,  and  C,  of  both  firms,  drew  on 
the  new  firm  in  favor  of  a  creditor  of  C.  &  Co.  for  an  amount  less 
than  the  credit  on  the  books,  and  accepted  the  draft  in  the  name 
of  the  new  firm,  the  new  firm  is  bound  by  the  draft,  for  this  is 
merely  paying  the  debt  of  the  new  firm  to  the  old.* 

Where  the  new  note  includes  a  debt  of  the  new  firm  with  that  of 
the  old,  the  payee  can  recover  upon  it  against  the  new  firm  to  the 
extent  of  the  valid  consideration,  the  payee  having  acted  in  good 
faith  in  receiving  the  note.'' 

§  510.  may  adopt  old  debts. —  The  incoming  partner 

may,  however,  become  liable  for  the  existing  indebtedness 
by  an  express  promise  to  pay  it,  or  by  an  assumption  of  the 
debt  on  proper  consideration.' 

1  Hester  v.  Lumpkin,  4  Ala.  509.  Curtis,  57  N.  Y.  7 ;  Arnold  v.  Nichols, 

2Guild  r.  Belcher,  119  Mass.    257;  64  id.  117;  Bate  r.  McDowell,  17  Jones 

Wilson  V.  Lewis,  2  M.  &G.  197;  S.  C.  &  Sp,   106;  Abpt    v.  Miller,  5  Jones 

as  Wilson  v.  Bailey,  9  Dowl.  P.  C,  18.  (N.  Ca.),  L.  32;  Broaddus  v.  Evans,  63 

'Burritt    v.    Dickson,  8  Cal.   113;  N.  Ca.  638;  Morehead  u.  Wriston,  73 

Markham  v.  Hazen,  48  Ga.  570;  Wil-  N.  Ca.  398;  Smead  v.  Lacey,  1  Disney, 

son  V.  Dozier,  58  id.  602;  Bracken  v.  239;  Torrens  v.  Campbell,  74  Pa.  St 

Ellsworth,  64  id,  243;  Morris  v.  Mar-  470;  Shamburgv.  Ruggles,  83  id.  148; 

queze,  74  id.  86 ;  Warren  v.  Dickson,  Hart  v.  Kelley,  83  id.  286 ;  Kountz  v. 

30  111.  363;  Goodenowu.  Jones,  75  id.  Holthouse,  85  id.  233;  White  v.  Thiel- 

48;  Silverman  v.  Chase,   90  id.    37;  ens,  106  id.  173;  Earon  v.   Mackey, 

Johnson  r.  Barry,  95  id.  483;  Frazer  106  id.  452;  Updike  v.  Doyle,  7  R.  L 

V.  Howe,  106  id.   563 ;  McCracken  v.  446 ;   Piano  Co.    v.    Bernard,    2   Lea 

Milhous,  7  111.    App.   169;  Lucas  v.  (Teun.),  358;  Wallace  v.  Freeman,  25 

Coulter,    104    Ind.  81;  Sternburg  v.  Tex.  Sup.  91;  Allen  v.  Atchison,  26 

Callanan,  14  Iowa,  251;  Preusser  v.  Tex.    616,    628;  Hobbs  v.  Wilson,    1 

Henshaw,  49  id.   41 ;  Poole  v.  Hin-  W.  Ya.  50 ;  Jones  v.  Bartlett,  50  Wis. 

trager,  60  id.  180 ;  Cross  v.  National  589 ;  Hine  v.  Beddome,  8  Up.  Can.  C. 

Bank,  17  Kan.  336;  Beall  v.   Poole,  P.  381.     In  Smead   v.  Lacey,  1   Dis- 

27  Md.  645 ;  Shaw  v.  McGregory,  105  ney,    239,    this    assumption    of    old 

Mass.   96;  Botsford  v.  Kleiuhaus,  29  debts  by  the  new  firm  was   held   in- 

Mich.    333;   Osborn    v.    Osborn,    86  ferable    from    the   facts     that     the 

Mich.    48;    Coleman    v.    Pearce,   26  course  of  business  was  to  pay  old 

Minn.  123;  Mueller  v.  Wiebracht,  47  debts     indiscriminately,     without 

Mo.   468;  Baum    v.   Fryrear,   85  id.  charging  them  up  to  the  old   firm, 

151;  Parmaleev.  Wiggenhorn,  5Neb.  and  no  account  of  stock  was  taken 

322;  Howell  u.  Sewing  Machine  Co.  on  the  new  partner  coming  in,  or  any 

12  id.  177;  Morrison  v.   Blodgett,  8  change  made  in  the   books   or  new 

N.  H.  238  (29  Am.  Dec.  653) ;  Colt  v.  ones  opened,  and  old  and  new  cred- 

Wilder,  1  Edw.  Ch.  484 ;  Durand  v.  itors  were  held  to  be  payable  equally 

527 


§  51 1.  CONDUCT  OF  THE  BUSINESS. 

A  mere  promise  by  the  incoming  partner  alone  to  a  cred- 
itor to  pay  the  debt  where  the  original  liabilit}'^  of  the  former 
partners  is  not  released  is  within  the  statute  of  frauds  as  a 
promise  to  pay  the  debt  of  another.^  There  must  b^  a  prom- 
ise to  the  creditor  upon  a  new  consideration  or  a  release  of 
the  prior  individual  or  former  firm.^  A  promise,  however, 
by  the  new  firm  which  the  creditor  accepts,  and  in  doing  so 
releases  the  former  debtor  or  debtors,  is  not  collateral  and 
not  within  the  statute  of  frauds.'' 

§  511.  Assumption  shown  by  acts;  estoppel.— But  the  as- 
sumption of  the  debts  in  favor  of  the  creditor  may  be  im- 
plied from  acts  and  conduct  towards  the  creditor.^ 

The  incoming  partner  may  also  become  liable  by  so  acting 
towards  the  creditor  as  to  be  estopped  to  deny  an  assump- 
tion of  the  debt  by  him. 

In  Burritt  v.  Dickson,  8  Cal.  113,  the  creditor  demauded  his  debt, 
and  the  new  partner,  knowing  the  creditor  did  not  know  whether 
the  new  firni  was  or  was  not  liable,  did  not  deny  the  liability,  and 
the  creditor  was  thus  induced  to  sue  the  new  firm.  This  was  ruled 
to  constitute  an  estoppel,  though  on  rehearing  the  judgment  was 
set  aside,  as  the  plaintiff  was  found  to  have  drawn  the  partnership 
articles  and  therefore  knew  that  there  was  no  liability. 

In  Coleman  v.  Pearce,  26  Minn.  123,  C.  consigned  wheat  to  0., 
to  be  sold  when  ordered  by  him,  on  commission.  Before  order  to 
sell,  0.  took  in  P.  as  partner,  both  of  them  notifying  C.  thereof, 
and  accounts  were  rendered  in  the  firm  name  to  C,  showing  that 
C.'s  account  and  the  consigned  property  had  been  transferred  to 
the  firm.     C,  trusting  to  the  firm's  responsibility,  did  not  order 

on  the  insolvency  of  the  new  firm.  2  Morris  v.  Marqueze,  74  Ga.  86; 
It  nowhere  appears  from  the  report  Goodenow  v.  Jones,  75  111.  48;  Shoe- 
that  the  old  creditors  assented  to  the  maker  v.  King,  -^0  Pa.  St.  107. 
novation.  3  Wallace  v.  Freeman,'  25  Tex. 
1  Bracken  v.  Ellsworth,  64  Ga.  243;  Supp.  91 ;  Shoemaker  v.  King.  40  Pa. 
Sternburg  v.  Callanan,  14  Iowa,  251.  St.  107.  See  White  v.  Thielens,  106 
But  see  Poole  v.  Hintrager,  CO  Iowa,  Pa.  St.  173. 

180.     But  after  payments  by  the  new  *  McCracken  v.  Milhous,  7  111.  App. 

firm,  credited  by  their  agreement  on  109;   Lucas  v.  Coulter,   104  Ind,  81 ; 

the  old  account,  it  is  too  late  to  raise  Beall  v.  Poole,  27  Md.  645;  Updike 

tlie  question  of  tlie  statute  of  frauds,  v-  Doyle,  7   R.   I.   44(5 ;  Piano  Co.  v. 

Mueller  v.  Wiebracht,  47  Mo.  468.  Bernard,  2  Lea,  358,  360. 

528 


PAYMENT,  NOVATION  AND  MERGER.       §  511. 

sale  for  several  months,  and  then  learned  that  0.  had  converted  the 
wheat  to  his  own  use  prior  to  forming  the  partnership.  It  was  held 
that  both  partners  were  estopped  to  deny  the  truth  of  their  false 
representations. 

Slight  evidence  will  be  sufficient  to  warrant  the  court  in  infer- 
ring that  the  incoming  partner  or  the  new  firm  has  assumed  the 
debts  of  the  old,  especially  if  he  or  they  have  received  the  benefit 
of  those  debts.' 

If,  on  the  death  of  a  partner,  his  widow  takes  his  place  in  the 
firm,  intending  there  shall  be  no  change  in  the  business  operations, 
and  a  current  contract  is  continued  to  be  carried  out,  and  she  de- 
rives a  benefit  from  it,  the  conclusion  may  be  drawn  that  she 
intended  to  assume  the  same  burdens  that  the  husband  would,  if 
living,  have  had;*  and  if  she  gives  a  mortgage  for  his  partnership 
debts,  it  will  be  presumed  that  she  intended  to  become  liable  for 
them;  and  that  the  mortgage  is  on  valid  consideration,  as  against 
other  creditors.^  So  writing  to  the  creditor,  recognizing  the  debt, 
and  scheduling  it  as  a  partnership  debt,  shows  an  assumption.* 

But  a  mere  statement  by  the  new  partner,  that  he  would  like  to 
give  new  notes  for  the  old,  and  had  no  loose  money  about  him,  is 
not  an  assent  to  the  making  of  notes,  any  more  than  a  willingness 
to  lend  credit  is  authority  to  use  the  firm  name;'  and  agreeing 
with  the  former  partners,  that  the  cost  of  fitting  up  the  premises 
shall  be  considered  as  expenses,  before  dividing  profits,  is  not  as- 
suming the  debt  therefor,  except  so  far  as  there  may  be  profits  out 
of  which  to  pay  it.^ 

A  rendering  of  an  annual  account,  by  the  new  firm,  with  the  old' 
balance  as  part  of  it,  does  not  make  the  new  firm  liable; '  but  if  sO' 
done  at  the  creditor's  suggestion,  or  with  his  assent,  is  evidence  of 
his  adoption  of  the  new  firm  as  his  debtors,  if  they  had  assumed-^ 
the  debt.» 

1  Ex  parte  Peele,    6  Ves.  Jr.  603,  2  Frazer  v.  Howe,  106  111.  563. 

004;    Ex  parte   Jackson,   1   id.  131;  »  Preusserv.  Henshaw,  49  Iowa,  41. 

Wheat  V.    Hamilton,    53    Ind.   256;  *  White  v.  Thielens,  106  Pa.  St.  173. 

Cross  V.  National  Bank,  17  Kan.  336.  5  Howell  v.  Sewing  Machine  Co.  12 

See  Smead  v.  Lacey,  1  Disney,  239,  Nebr.  177. 

abstracted  in  §  510.     Contra,  that  he  6  Hart  v.  Kelley,  83  Pa.  St.  286. 

should   not   be  held  liable  on  slight  "^  Ex  parte  Parker,  2  M.  D.  &  D. 

circumstances.      Bracken    v.     Ells-  511. 

worth,  64  Ga.  243;  Beall  v.  Poole,  27  8  Hine  v.  Beddorae,  8  Up.  Can.  C. 

Md.  645.  P.  381. 
Vol.  1  —  34                           529 


§  612.  CONDUCT  OF  THE  BUSINESS. 

So  payment  of  interest,  or  a  partial  payment,  to  the  creditor,  by 
the  new  firm,  though  it  may  be  some  evidence  of  an  assumption  by 
it  of  the  debt,  as  between  the  partners,  is  not  with  the  creditor.'  And 
where  the  new  firm  agreed  with  the  retiring  partner  to  continue 
delivery  of  produce,  under  a  contract  with  plaintiff,  the  mere  re- 
ceipt of  payments  from  the  plaintiff  does  not  raise  a  presumption 
that  the  new  firm  had  agreed  to  be  liable  to  the  plaintiff  for  refusal 
to  continue  delivery.* 

§  512.  entries  on  boots  of  new  firm. —  Entering  the 

old  debt  in  the  books  as  a  debt  of  the  new  concern  fixes 
upon  the  incoming  partner  the  consequences  of  a  knowl- 
edge that  it  is  claimed  to  be  their  debt,  and  is  evidence  that 
it  is  so;'  but  contra  if  the  incoming  partner  had  no  access 
to  the  books,  and  did  not  know  of  such  entries.^ 

So  carrying  on  the  accounts  of  the  new  firm  in  the  old 
books,  without  any  line  of  demarcation  or  distinction  be- 
tween the  payments,  balances,  debts  or  assets  of  the  old  and 
new  concerns,  as  a  continuous  business,  may  be  evidence  of 
an  assumption  of  the  earlier  part  of  a  continuing  unbroken 
account.' 

The  doctrine  of  the  application  of  payments,  where  an  account 
is  kept  on  in  an  unbroken  line,  through  changes  in  the  membership 
of  firms,  has  been  already  considered. 

>  Ex  parte  Parker,  2  M.   D.  &  D.  Cross  v.  National  Bank,  17  Kan.  336; 

511;  Beale  v.    Mouls,  10  Q.  B.  97(5;  Abpt  u.  Miller,  5  Jones  (N.   Ca.),  L. 

Morehead  V.  Wriston,  73  N.  Ca.  5598;  Zi;  Updike  v.   Doyle,    7  R.    I.   446; 

Shamburgw.  Ruggles,  83  Pa.  St.  148.  Piano  Co.   v.    Bernard,   2  Lea,  358; 

Contra,  that  it  is  evidence  of  a  nova-  Hine  v.  Beddorae,  8  Up.   Can.  C.  P. 

tion  by  consent  of  both  parties.     Os-  381. 

born  V.  Osborn,   86  Mici).   48;  Cross  <  £"0;  parfe  Peele,  6  Ves.  602 ;  Piano 

V.  National  Bank,  17  Kan.  336.  Co.  v.  Bernard,  2  Lea,  358. 

2Parmalee  v.  Wiggenhorn,  5  Neb.  &  Rolfe  v.  Flower,  L.  R.  1  P.  C.  40; 

322.     And  see  Goodenow   v.  Jones,  Bate  v.  McDowell,   17  Jones  &  Sp. 

75  III.  48.  106;  Stnead  v.  Lacey,  1  Disney,  239; 

*  Ex  parte  Kedie,  2  Deac.  &.  C.  321 ;  Sliamburg  v.  Ruggles,  83  Pa.  St.  148; 

^icparfe  Whitmore,  3  M.  &  A.  627;  Earon   v.   Mackey,    106  Pa.  St.  452; 

3  Deac.  365;  s.  c.  on  appeal  as  Ex  Updike  v.  Doyle,  7  R.   I.   446.     But 

parte  Jackson,  2  M.  D.    &  D.  146;  will  not  control  other  improbabili- 

Rolfo  V.  Flower,   L.  R.   1  P.  C.  27 ;  ties,  Ex  parte  Sandham,  4  Deac   & 

Ex  parte  Griffin,   3  Ont.    App.    1 ;  Ch.  812. 

630 


PAYMENT,  NOVATION  AN£)  MERGER.  §614. 

§  513.  examples  of  agreements  inter  se. —  A  written 

agreement  between  the  owner  of  a  business  carried  on  in  a  store 
leased  by  him  and  an  incoming  partner,  that  the  partners  should  be 
equally  liable  for  debts  and  liabilities  suffered  or  created  on  account 
of  the  firm,  does  not  include  the  rent  accruing  after  dissolution  of 
the  new  firm,  and  the  incoming  partner  is  not  liable  for  it,  although 
there  had  been  a  prior  parol  agreement  that  the  firm  should  be 
liable  for  the  rent  during  the  whole  unexpired  term.' 

Where  H.  bought  half  of  B.'s  business  and  went  into  partnership 
with  him,  agreeing  to  assume  and  pay  half  the  debts  owing  on  thf* 
stock,  but  having  failed  to  do  so,  and  B.  having  paid  nearly  all  the 
debts,  it  was  held  that  a  debt  due  from  B.  for  work  in  the  store 
could  be  proved  against  the  firm's  assignee  for  creditors;  that  the 
words  owing  on  the  stock  should  not  receive  a  narrow  construc- 
tion, but  should  be  held  to  mean  incurred  on  account  of  the  con- 
cern.* 

Where  one  partner  of  an  existing  firm  assigns  part  of  his  inter- 
est to  a  person  by  agreement,  constituting  such  person  ''a  partner  in 
the  firm  to  the  amount  of  one-eighth  of  all  its  profits  and  losses  from 
the  time  the  firm  began  business,"  and  such  person  is  received  by  the 
firm  as  a  member,  he  is  a  partner  from  the  b,eginning  and  liable  for 
existing  debts.  No  other  construction  is  reasonable,  especially 
where  there  is  no  change  of  name  or  of  accounts  or  new  books.* 

Where  a  person  bought  out  the  business  of  Z.  &  C,  a  partnership, 
and  C.  &  T.  then  formed  a  partnership  and  bought  out  from  him 
the  same  business  under  articles  providing  that  C.  &  T.  would  as- 
sume the  debts  of  Z.  &  C,  it  was  held  that  T.  could  show  by  parol 
that  he  was  induced  to  enter  the  contract  by  C.'s  exhibiting  to  him 
a  list  of  the  debts  of  Z.  &  C,  from  which  one  debt  was  omitted,  as 
evidence  that,  as  between  the  partners,  that  debt  was  not  assumed.* 

§  514.  fraud  on  the  incoming  partner. —  Where  fraud 

has  been  practiced  on  the  incoming  partner  to  induce  him  to  enter 
the  firm  and  assume  part  of  the  debts,  he  can  make  any  defense 
against  the  claim  of  a  creditor  of  the  former  firm  that  he  could  if 
his  copartner  were  suing  him  on  the  contract  to  assume,  where 
the  creditor  is  seeking  to  recover  on  the  contract  between  the 

1  Durand  v.  Curtis,  57  N.  Y.  7.  <  Torrens  v.  Campbell,  74  Pa.  St. 

2  Jones  V.  Bartlett,  50  Wis.  589.         470,  474. 

3  Earon  v.  Mackey,  106  Pa.  St.  453. 

531 


§  516.  CONDUCT  OF  THE  BUSINESS. 

partners,  for  the  creditor's  claim  is  subject  to  any  weakness  in  sucli 
contract,  as  fraud,  mistake,  want  of  consideration,  and  the  like.' 

But  the  incoming  partner  must  have  repudiated  or  rescinded  the 
contract  on  discover}'  of  the  fraud,  otherwise  he  cannot  make  such 
defense,  for  he  cannot  retain  the  fruits  of  it,  especially  where  the 
assets  transferred  were  sufficient  to  pay  the  debts,  and  refuse  to  per- 
form.* 

§  515.  note  for  debt  assumed  by  new  firm. —  If  a 

partnership  is  formed  before  goods  purchased  by  one  of  the 
partners  are  paid  for,  and  the  partners  agree  that  the  new 
firm  shall  use  and  pay  for  the  goods,  and  one -of  them  gives 
the  firm's  note  or  acceptance  to  the  seller  in  payment,  this 
binds  the  firm.  It  is  held  to  be  on  a  perfectly  good  consid- 
eration, and  it  is  but  just  that  the  firm  should  assume  the 
debt.' 

If  a  note  is  given  by  one  partner  for  the  debt  of  the  prior 
firm,  a  recognition  of  the  note  and  promise  to  the  creditor  to  pay 
it  on  the  part  of  the  new  partner  is  evidence  that  he  assumed 
the  debts  and  makes  the  note  valid.*  Or  an  assent  to  the  issu- 
ing of  the  new  note  by  being  present  when  its  propriety  was  dis- 
cussed." 

If,  after  a  partner  has  sold  out  to  a  third  person  who  forms  a  new 
firm  with  the  continuing  partner,  execution  against  the  old  firm  is 
levied  on  the  goods,  and  the  new  firm  receipts  to  the  sheriff  and 
promises  to  pay  or  re-deliver,  the  promise  is  good,  for  the  goods 
ought  to  pay  the  debt.*  » 

§516.  assent    of   creditor. —  Except  in  those  few 

states  where  the  creditor  can  sue  the  new  firm  on  their  as- 
sumption of  the  debts  of  the  old  without  his  being  a  party 
to  such  change,  a  request  to  the  creditor  and  his  assent  are 
necessarv  in  the  above  cases  to  render  the  new  firm  liable 

« Torrens  v.  Campbell,  74  Pa.  St.  Barry,  95  id.  483;  Rice  u.  Wolff,  65 
470,   474.     And   see  Morris  v.   Mar-    Wis.  1. 

queze,  74  Ga.  80.  ^  Wilson    v.    Dozier,    58    Ga.    603; 

2  Arnold  v.  Nichols,  64  N.  Y.  117.        Cross  v.  National  Bank,  17  Kan.  336. 
SMaikham  v.  Hazen,  48  Ga.  570;       »  See  Shaw  r.  McGregory,  105  Mass. 
Morris  t'.  Marqueze,  74  id.  86;  Silver-   96. 

man  v.  Chase,  90  111.  37;  Johnson  v.       6  Morrison  v,  Blodgett,  8  N.  H.  238  j 

29  Am.  Dec.  653. 
533 


PAYMENT,  NOVATION  AND  MERGER.  g  618. 

to  him  on  its  agreement  to  pay  the  debts  of  the  old.  With- 
out this  there  is  no  novation. 

Sucli  assent  may  be  proved  by  acts.  Thus,  where  the  creditor, 
on  request  of  the  new  firm,  made  up  his  account  and  drew  on  the 
new  firm  for  the  amount,  this  is  evidence  of  assent.'  A  former  at- 
tachment by  the  creditor  for  the  same  debt  against  the  new  firm  is 
evidence  of  his  intent  to  release  the  retiring  partner  and  charge  the 
new  firm.' 

It  is  too  late  for  the  creditor  to  assent  to  holding  the  new  firm 
liable  in  place  of  the  old  after  the  incoming  partner  has  retired 
from  the  new  firm;'  or  after  the  bankruptcy  of  the  new  firm,  for 
they  cannot  then  contract.'' 

The  fact  that  the  creditor  was  a  lunatic  makes  no  difference.' 

§  517.  practice. —  A  declaration  against  four  persons  as 

partners  for  goods  sold  and  delivered,  money  lent,  work  done,  etc., 
will  sustain  proof  that  the  debts  were  incurred  by  two  partners, 
and  that  the  other  two  subsequently  joined  the  firm,  and  the  new 
firm  agreed  to  pay.  This  is  not  a  variance,  it  not  being  averred 
that  they  were  partners  at  the  date  of  the  delivery  or  lending.' 

But  where  there  are  retired  partners,  as  well  as  new  ones,  there 
can  be  no  action  against  all  jointly  unless  there  was  a  joint  prom- 
ise by  all,  for  either  the  old  firm  or  the  new  is  liable.'' 

§518.  Change  without  incoming  partners. —  Where  a 
firm  is  dissolved  by  the  retirement  of  a  partner,  no  new 
partner  coming  in,  a  creditor's  continued  dealing  with  the 

1  Ex  parte  Jackson,  2  M.  D.  &  D.  point,  but  illustrates  the  principle. 
146;  s.  C.  in  the  court  below  as  Ex  There  S.,  of  R.  &  Co.,  retired  and  B. 
parte  Whitmore,  3  M.   &  A.  627 ;  3  took  his   place,  the  firm   name  re- 
Deac.  365;  or  included  the  old  bal-  niaining  the  same,  but  no  notice  of 
ance  in  the  new  account  at  his  re-  dissolution   was  given,    and   an  old 
quest,  Hine  v.  Beddome,  8  Up.  Can.  customer,  ignorant  of  the  change, 
C.  P.  381.  sold  goods  to  the  last  firm.     It  was 
2Baum  u.  Fryrear,  85  Mo.  151.  held   that  the    liability  of    the  old 
SMcKeand   v.    Mortimore,  11   Up.  firm  was  by  estoppel  to  deny  a  con- 
Can.  Q.  B.  4~'8.  tinuance  of  the  agency  of  the  part- 
*  Ex  parte  Freeman,  Buck,  471.  ners  to  bind  it,  and  that  of  the  new 
» £'a:;par^e  Parker,  2  M.  D.  &D.  511.  firm  was  on   the    facts,    and   there 
6  Beall  17.  Poole,  27  Md.  645.  could  not  be  a  joint  liability  of  old 
f  See  Scarf  v.  Jardine,  L.  R.  7  App.  and  new  partners,  but  the  creditor 
Gas.    345.     This    is    not  directly  in  must  elect. 

533 


g  619.  CONDUCT  OF  THE  BUSINESS. 

new  firm  is  not  alone  sufficient  to  show  an  intention  on  his 
part  to  deprive  himself  of  a  right  to  resort  to  the  retired 
partner  and  to  look  to  the  new  firm  alone;  and  where  the 
dissolution  is  without  a  continuance  of  the  business  and  no 
new  dealing,  his  treating  a  partner  who  had  assumed  the 
debts  as  his  sole  debtor  would  seem  to  be  still  less  final  as 
an  evidence  of  such  intention. 

Where  several  persons  were  in  partnership  and  one  dies  or  re- 
tires, customers  who,  knowing  of  the  change,  continue  to  deal 
with  the  surviving  partners  who  carry  on  the  same  business  with- 
out a  break,  can  hold  the  estate  of  the  deceased  partner  liable  for 
the  balance  due  at  his  death,  deducting  subsequent  payments.' 
Such  estate  is  liable  for  securities  wrongfully  sold  in  the  life-time 
of  the  decedent,  for  the  additional  reason  that  the  customer  could 
not  elect  to  discharge  it  without  knowledge  of  the  misappropria- 
tion.'' 

Where  the  creditor,  after  dissolution,  by  which  one  partner  as- 
sumed the  debts,  had  transferred  upon  his  books  the  account  against 
the  firm  to  the  account  of  such  partner,  with  whom  he  had  had 
intermediate  dealings  without  the  privity  of  any  of  the  partners, 
this  does  not  prevent  his  recharging  the  firm  and  holding  them.* 

So  where  the  creditor  stated  an  account  against  the  partner  who 
had  assumed  the  debts,  this  does  not  discharge  the  other  partner; 
nor  although  in  stating  an  account  against  the  firm  he  omitted 
Buch  debt;*  or  drew  upon  him;*  or  dealt  with  him  in  finishing  a 
contract  of  employment  made  with  the  firm  as  attorneys  to  con- 
duct a  suit.* 

§  511).  And  slight  circumstances  only  are  required  to  justify  a 
finding  that  a  creditor  of  the  former  firm,  who  had  knowkdge  of 

iDevaynes  v.  Noble,  Sleech's  Case,  6  Waldeck  v.  Brand  e,  61  Wis.  579. 

1  Mer.  539,569;  id.    Clayton's  Case,  Where  partners  claim  in  defense  that 

id.  572,  604;  Botsford  v.  Kleinhaus,  the  plaintiff  had  agreed  to  transfer 

29  Mich.  332.  the  amount  due  him  to  the  account 

2  Clayton's  Case,  1  Mer.  579.  of  one  partner  as  a  debt  due  tlie  lat- 

3  Barker  v.  Blake,  11  Mass.  16,  it  ter  from  the  others,  their  book  was 
was  said  that  there  was  no  consider-  held  admissible  in  evidence  to  show 
ation  for  the  change;  but  this  is  performance  of  the  agreement  on 
not  so.  their  part.     Moore  v.  Knott,  14  Ore- 

*  Averill  v.  Lyman,  18  Pick.  346.        gon,  35. 
»Skannel  v.  Taylor,  12  La.  Ann.  773. 

534 


PAYMENT,  NOVATION  AND  MERGER.  §610. 

the  dissolution  and  assumption  of  debts,  has  accepted  the  new  firm 
in  place  of  the  old  as  his  debtor.' 

Merely  crediting  the  new  firm,  which  had  assumed  the  debts  of 
the  old,  with  payments  by  them,  is  no  evidence  that  the  creditor 
relinquished  his  claim  against  the  old  firm  and  the  retiring  part- 
ners,' nor  is  expressing  satisfaction  at  the  change.^  Merely  accepting 
payments  from  the  continuing  partners,  though  at  an  increased  rate 
of  interest,  does  not  show  an  agreement  to  release  the  retired 
partner,*  or  even  taking  new  security  from  them/ 

In  Wildes  v.  Fessenden,  4  Met.  12,  F.  &  S.  owed  W.  for  loans,  and 
P.  also  had  an  individual  account  with  him.  S.,  who  had  funds  in 
F.'s  hands,  requested  F.  to  remit  them  to  W.  and  close  the  account 
of  F.  &  S.  F.  remitted  to  W.  with  a  request  to  credit  the  remit- 
tances to  F.  generally,  and  to  debit  the  loans  of  F.  &  S.  to  F.  indi- 
vidually. S.  saw  these  letters.  W.  answered  that  he  had  received 
the  letter  and  "  noted  its  contents."  F.  failed,  largely  indebted  to 
S.,  and  after  four  and  one-half  months  of  silence,  W.  sued  both  F. 
&  S.  on  his  account.  W.'s  letter  was  held  not  to  be  an  agreement 
to  discharge  S.     The  phrase  "  contents  noted  "  does  not  imply  a 

1  Regester  v.  Dodge,  6  Fed.  Rep.  6 ;  not  to  exonerate  him.  Scull  v.  Alter, 
19Blatchf.79;61  How.  Pr.  107,  hold-  16  N.J.  L.  147.  See  Botsford  v. 
ing  that  proving  the  debt  in  bank-    Kleinhaus,  29  Mich.  333. 

ruptcy  against  the  new  firm,  and  an  3  Smith  v.  Rogers,  17  Johns.  340; 
omission  during  the  life- time  of  the  Clark  v.  Billings,  59  Ind.  508;  Chase 
retiring  partner  to  allege  a  claim  v.  Vaughan,  30  Me.  412;  Lewis  v. 
against  him,  and  a  delay  of  five  Westover,  29  Mich.  14;  VValstrom  i'. 
years  to  look  to  his  estate,  by  which  Hopkins,  103  Pa.  St.  118. 
the  retiring  partner  had  been  de-  4  Heath  v.  Percival,  1  P.  Wms. 
prived  of  the  opportunity  to  partici-  683;  1  Stra.  403.  Here  E.  &  P.,  part- 
pate  in  the  distribution  in  bank-  uers.  dissolved  in  1693,  dividing  the 
ruptcy,  were  held  sufficient.  Shaw  stock  between  them,  and  giving 
V.  McGregory,  105  Mass.  96,  102,  hold-  notice  to  creditoi's  either  to  receive 
ing  that  receiving  and  discussing  the  their  money  or  look  to  E.,  who  had 
old  and  new  bills  without  objection  agreed  with  P.  to  pay  all  debts.  In 
was  sufficient.  Both  these  cases  state  1708  a  bond  creditor  renewed  his 
that  slight  evidence  will  justify  the  debt  with  E.,  at  six  percent,  interest, 
inference  that  the  new  firm  assumed  In  1711  E.  became  insolvent.  The 
the  old  debt.  creditor  could  have  collected  his  debt 

2  Hall  V.  Jones,  56  Ala.  493,  where  before.     It  was  held  that  P.  was  still 
the  creditor  demanded  payment  fx'om  liable,  but  only  at  five  per  cent.    And 
the  new    firm,   and    received    pay-  see  Harris  v.  Farwell,  15  Beav.  31. 
ments  from  them,  and  made  no  de-  s  Thompson  v.    Percival,    5  B.    & 
maud  on  the  ex-partner,  was  held  Ad.   925. 

535 


§  520.  CONDUCT  OF  THE  BUSINESS. 

promise,  and  if  he  had  promised  there  was  no  consideration  to 
support  the  promise. 

And  the  course  of  dealing  may  be  looked  to  to  ascertain  the  in- 
tent, and  if  thus  shown,  an  agreement  need  not  be  proved.'  Thus, 
proving  a  debt  against  the  estate  of  the  partner  who  had  assumed 
the  debts  might  be  equivocal,  but  receiving  a  dividend  discharges 
all  claim  against  the  other  partner. **  Receiving  a  dividend  and  re- 
leasing the  new  firm  releases  the  retiring  partner,^  unless  the  cred- 
itor shows  that  he  did  not  know  of  the  dissolution  and  thouirht  it 
was  the  old  firm  that  had  gone  into  insolvency.^  A  former  attach- 
ment against  the  new  firm  for  the  same  debt  is  evidence  of  an 
intent  to  release  the  retired  partner.* 

In  Gates  v.  Hughes,  44  Wis.  332,  it  was  said  that  if  the  evidence 
was  conflicting  as  to  whether  the  note  of  a  former  partner  was 
taken  as  payment,  the  amount  and  value  of  the  property  received 
by  him,  he  having  agreed  to  assume  the  debts,  and  his  ability  to 
pay  the  creditor,  is  material  evidence  as  to  whether  the  creditor 
discharged  the  other  partner. 

Where  a  new  note  has  been  taken  from  the  continuing  partners 
when  they  have  assumed  payment  of  the  debts,  to  the  prejudice  of 
the  retired  partner,  another  element  is  introduced,  viz.,  as  to  how 
far  a  retired  partner  can  claim  the  rights  of  a  surety,  which  has 
been  elsewhere  considered.     (§§  532-534.) 

§  520.  We  have  elsewhere  seen  that  an  incoming  partner 
does  not  become  liable  for  the  old  debts,  unless  he  expressly 
agree  to  be  so.  But  if  the  new  firm  does  assume  the  debts 
of  the  old,  a  tacit  agreement  on  the  part  of  the  creditor, 
to  substitute  them  as  his  debtors,  and  discharge  the  retired 
partners,  can  be  perhaps  more  easily  inferred. 

In  Shaw  v  McGregory,  105  Mass.  96,  102,  holding  that  slight 
evidence  would  justify  the  inference  that  the  new  firm  assumed  the 
debt  of  the  old,  it  was  ruled  that  receiving  and  discussing  the  old 
and  new  bill  together,  without  objection  that  part  was  for  the  old 
firm,  was  sufficient. 

1  Bell  V.  Barker,  16  Gray,  62.  3  Bank  of  Wilmington  v.  Almond. 

ZBucklinr.  Bucklin,  97  Mass.  256;    1  Whart.  1G9. 
that  proving  the  debt  is  sufficient,       *  Buxton    v.   Edwards,    134  Mass 
Regesteru.  Dodge,  19  Blatchf.  79;  6    567. 

Fed.  Rep.  6;  61  How.  Pr.  107.  sBaum  v.  Fryrear,  85  Mo.  151. 

536 


PAYMENT,  NOVATION  AND  MERGER.       §  620. 

In  Hart  v.  Alexander,  2  M.  &  W.  481  (7  C.  &  P.  746),  A.,  B.,  C. 
and  D.  were  bankers,  as  A.  &  Co.  A.  retired  and  E.  took  his  place. 
The  p'aintiif,  a  depositor  with  the  original  firm,  constantly  received 
accounts  current  from  the  new  firm,  and  they  paid  him  interest 
from  time  to  time  at  varying  rates.  The  court  found  that  the 
creditor  had  knowledge  that  A.  had  retired,  and  that  the  new  firm 
had  assumed  the  debts,  and  held  that  the  discharge  of  A.  followed 
from  the  new  dealings,  with  knowledge  of  this  fact.' 

Oakeley  v.  Pasheller,  10  Bligh,  N.  R.  548;  4  CI.  &  Fin.  207,  is 
like  Hart  v.  Alexander,  except  that  the  dissolution  was  by  death  ot 
a  partner,  in  whose  place  a  new  partner  was  taken  in,  and  the 
plaintiff  thereafter  received  accounts  in  which  the  old  and  new 
debts  were  united,  and  was  paid  interest. 

In  Harris  v.  Lindsay,  4  Wash.  C.  C.  98,  271,  A.  &  B.  dissolved,  A. 
assuming  the  debts,  of  which  plaintiff,  a  creditor,  had  notice.  A. 
formed  a  new  partnership,  to  which  the  plaintiff  gave  credit,  and 
it  dissolved  in  debt  to  him.  Notes  were  given  for  the  consolidated 
amounts  of  the  old  and  new  debts,  but  none  oi  the  notes  corre- 
sponded with  any  of  the  balances  due  from  A.  &  B.,  and  the  plaint- 
iff agreed  to  credit  A.  with  the  notes  when  paid.  B.  was  held  to 
be  dischai-ged. 

In  Watts  V.  Robinson,  32  Up.  Can.  Q.  B.  362,  where  one  part- 
ner retired,  and  a  third  person  took  his  place,  and  the  new  firm 
assumed  the  debts,  a  creditor  of  the  old  firm  taking  the  note  of  the 
new,  with  knowledge  of  these  facts,  releases  the  retiring  partner. 

In  Heroy  v.  Van  Pelt,  4  Bosw.  60,  Van  Pelt  and  N.  E.  Smith  were 
partners,  as  Van  Pelt  &  Smith.  Smith  retired,  and  J.  B,  Smith 
became  partner  in  his  place;  the  old  name  being  retained.  Van 
Pelt  gave  plaintiff  a  note  signed  in  the  firm  name,  for  a  debt  of  the 
old  firm.  Plaintiff  sued  the  old  firm  for  goods  sold,  and  N.  E. 
Smith  claimed  the  note  was  a  payment.  This  question  was  left  to 
the  jury.  Here  it  appeared  that  plaintiff  did  not  know  of  the  change 
of  membership. 

Where  a  firm  indebted  to  the  plaintiff  took  in  a  new  partner, 
who  brought  in  no  capital,  and  the  new  firm  assumes  the  debts 
of  the  old,  and  the  accounts  are  continued  without  change,  and 

1  Parke,  B.,  p.  492,  doubts  David  v.    former  and  Lodge  v.  Dicas  are  much 
Ellice,  5  B.  &  C.  196;  7  D.  &  R.  690,    shaken  by  Thompson  v.  Percival,  8 
and  Kirwan  v.  Kir%van,  2  C.  &  M.    Nev.  &  M.  167;  5  B.  &  Ad.  925. 
617;  4  Tyr.  491,  and  says  that  the 

537 


§  521.  CONDUCT  OF  THE  BUSINESS. 

the  creditor  is  partly  paid  out  of  the  blended  assets  of  the  new  and 
old  firms,  and  continues  his  dealing,  knowing  of  the  change,  and 
treating  the  new  firm  as  his  debtors,  he  can  hold  them  liable  for  the 
balance.' 

In  Thomas  v.  Shillabeer,  1  M.  &  W.  124,  the  plaintiff,  an  em- 
ployee of  S.  &  M.,  a  firm,  deposited  with  it  a  sum  of  money,  as 
security  for  good  conduct.  The  firm  dissolved  and  divided  the 
business,  each  partner  agreeing  to  employ  part  of  the  servants,  and 
pay  part  of  the  debts;  M.  to  take  the  plaintiff  and  pay  his  debt. 
A  verdict  was  ordered  for  the  plaintiff  against  S.  non  obstante^  on 
a  plea  that  plaintifi'  had  assented  to  discharge  S.;  for  a  mere  assent 
is  not  an  agreement,  whereby,  in  consideration  of  releasing  one 
partner,  the  other  undertakes  to  pay. 

§  521.  Old  firm  must  be  discharged. —  But  evidence  of  a 
willingness  on  the  part  of  the  creditor  to  look  to  the  new- 
firm  is  not  sufficient  without  some  evidence  of  an  intention 
to  discharge  the  old  firm,  and  of  an  intention  on  the  part  of 
the  new  firm  to  be  liable  to  him,  shown  by  acts  that  extend 
beyond  merely  carrying  out  their  agreement  with  the  old 
firm,  to  assume  the  debts. 

In  Kirwan  v.  Kirwan,  2  Cr.  &  M.  617,  plaintiff  had  money  de- 
posited with  a  firm  of  three  partners,  A.,  B.  &  C,  and  annual 
accounts  were  rendered  to  him.  B.  and  C.  successively  retired,  and 
A.  took  in  K.  as  a  new  partner,  with  a  large  amount  of  capital.  The 
plaintiff's  account  was  transferred  to  the  new  firm,  and  plaintiff 
said  he  had  no  claim  upon  the  retired  partners.  The  firm  sent  an- 
nual accounts,  and  paid  interest  and  part  of  the  principal  to  the 
plaintiff.  There  was  held  to  be  no  evidence  of  assent  by  the  plaint- 
iff to  look  to  the  new  firm  alone,  and  in  the  absence  of  such  assent 
it  could  not  be  inferred  that  K.  intended  to  assume  the  debt.  Bol- 
laud,  J.,  said  that  it  was  conceivable,  also,  that  K.  may  have  known 
nothing  about  the  account,  and  doubted  whether  plaintiff  could 
have  sued  the  new  firm.^ 

In  Lewis  v.  Westover,  29  Mich.  14,  a  debtor  of  a  firm  sold  an 
interest  owned  by  him,  to  one  of  the  partners,  on  his  personal  ac- 
count, the  partner  agreeing,  as  part  payment,  to  settle  the  debtor  s 

1  Rolfe  V.  Flower,  L.  R.  1  P.  C.  27.  2  See,  also,  Gough  v.  Davies,  4 
And  see  Smead  v.  Lacey,  1  Disney,  Price,  200 ;  Blew  v.  Wyatt,  5  C.  &  P. 
239,  noticed  in  §  510.  397. 

538 


PAYMENT,  NOVATION  AND  MERGER.       §  623. 

note  held  by  the  firm.  The  fact  that  the  firm  was  pleased  with  the 
arrangement,  and  hoped  payment  of  the  note  from  it,  and  per- 
mitted delay  in  that  hope,  does  not  show  an  agreement  to  accept 
the  partner  as  their  debtor,  in  place  of  the  maker,  and  the  maker 
and  indorsers  are  still  liable. 

§  522.  As  against  sureties. —  As  against  sureties,  however, 
a  more  plain  expression  of  intention  than  appears  from 
mere  inference  may  be  required. 

In  Cochrane  v.  Stewart,  63  Mo.  424,  the  firm  of  S.  &  A.  owed 
plaintiffs,  among  other  persons,  for  sewing  machines.  H.  bought 
out  A.'s  interest,  and  the  firm  of  S.  &  H.  was  formed,  and  the  new- 
firm  received  the  machines  from  the  old  firm,  and  assumed  its  debts. 
S.  &  H.  then  gave  a  bond  to  plaintiffs,  conditioned  to  pay  them  all 
the  debts  of  the  new  firm  existing  or  to  be  incurred.  It  was  held 
that  the  bond  would  not  be  construed  to  bind  the  sureties  for  the 
debts  of  S.  &  A.  to  plaintiffs. 

See,  also,  Childs  v.  Walker,  2  Allen,  259,  where  C.  &  C.  had  given 
notes  for  a  firm  debt,  and  then  W.  joined  the  firm,  which  then  be- 
came C,  C.  &  Co.,  and  the  new  firm  assumed  the  payment  of  the 
notes.  Afterwards  one  of  the  C.'s  retired,  and  the  two  others,  C. 
and  W.,  gave  him  a  bond  to  pay  the  debts  of  C,  C.  &  Co.  The  retired 
partner  was  compelled  to  pay  one  of  the  notes,  and  thereupon  sued 
on  the  bond.  It  was  held  he  could  not  recover;  the  reason  given 
being  that  the  assumption  by  C,  C.  &  Co.  of  the  debts  of  C.  &  C. 
did  not  bring  those  debts  within  the  terms  of  the  bond  until  the 
creditors  had  agreed  to  the  substitution. 

§  523.  Note  or  bill  as  evidence  of  novation. —  It  is  certain, 
however,  that  if  the  agreement  to  accept  one  partner  as  sole 
debtor  and  release  the  other  is  accompanied  by  a  change  in 
the  form  of  the  debt,  or  by  new  security  or  additional  or 
other  sureties,  the  substitution  is  valid.  Thus,  if  the  cred- 
itor promises  to  release  one  partner  and  takes  the  note  of  the 
other  for  the  entire  debt,  it  is  a  valid  substitution  of  debtors 
and  the  other  partner  is  released.^ 

1  Thompson  v.  Percival,  5  B.  &  Ad.  Farwell,  15  Beav.  31 ;  Benson  v.  Had- 
925;  Evans  V.  Drummond,  4  Esp.  89;  field,  4  Hare,  32;  Harris  v.  Lindsay, 
Reed  v.  White,  5  id.  122;  Kirwan  v.  4  Wash.  C.  C.  98  and  271 ;  Re  Clap,  2 
Kirwan,  2  Cr.  &  M.  617;  Hart  v.  Lowell,  226 ;  Tillotson  v.  Tillotson,  34 
Alexander,  2M.  &  AV.  484;  Harris  v.    Conn.  335;  West  v.  Chasten,  12  Fla. 

539 


§  51' I.  CONDUCT  OF  THE  BUSINESS. 

The  creditor's  agreement  with  one  partjier,  that,  if  he  gives  notes 
for  one-half  the  debt  and  pays  them,  he  will  release  him  from  the 
other  half,  is  on  valuable  consideration  and  binding.  The  reasons 
assigned  in  the  case  cited  below  are  that  it  gives  the  creditor  equal- 
it}^  in  the  separate  estate  with  individual  creditors,  and  the  maker's 
time  being  extended,  he  cannot  pay  and  sue  his  partner  for  contri- 
bution.' It  may  be  observed  of  these  two  reasons  that  the  former 
would  apply  to  a  mere  promise  to  release  when  there  were  but  two 
partners,  and  the  latter  reason  would  not  apply  when  cash  instead 
of  notes  is  given. 

An  agreement  between  two  partners  and  a  creditor  to  submit  to 
arbitration  to  divide  the  assets  and  determine  which  partner  should 
pay  the  creditor  is  suflScient  consideration  for  the  creditor's  releas.^ 
of  the  other.'' 

§  524.  Note  of  one  partner  before  dissolution. —  Merely 
taking  the  individual  note  of  one  partner  while  the  firm  is 
going  on  is  not  deemed  to  be  payment  of  a  partnership  debt 
so  as  to  be  evidence  of  an  intention  or  agreement  to  release 
the  copartners,  but  collateral  merely,  and  if  taken  in  renew^al 
of  a  firm  note  is  not  deemed  a  payment  unless  such  inten- 
tion is  proved;  while  an  original  transaction  contracting 
with  or  charging  one  partner  or  sending  an  account  to  him 
personally  has  great  force  in  showing  that  credit  was  given 
to  him  alone.  But  the  taking  security  for  an  existing  part- 
nership debt,  or  changing  the  form  of  the  original  charge,  is 
of  very  little  weight.'^    Even  though  such  partner  give  ad- 

315;  Hopkins  v.  Cair,  31    lad.  260;  431;  Hoskissoa   v.  Eliot.  62  Pa.    St. 
Maeklin  v.    Crutcher,  6  Bash,    401;  393;  Nichols  v.  Cheaiis,  4  Sneed,  229; 
Smith  r.  Turner.  9  id.  417;  Tiinibow  Stephens  v.   Thompson,   28  Vt.   77; 
V.    Broach,  12  id.  455;  Williams  v.  Bowyer  v.   Knapp,  15  W,  Va.    277; 
Rogers,  14  id.  776;Hoopes  v.  McCan.  Gates  u.  Hughes,  44  Wis.  332;  Hoef- 
19  La.  Ann.  201;  Meyer  u.  Atkins.  29  linger  u  Wells,  47  id.  028;  Port  Dar- 
id.  5S();  Folk  v.  Wilson.  21  Md.  538;  liugton  Harbour  Co.    v.   Squair,   18 
Hotchin     v.    Secor,    8    Mich.     494;  Up.  Can.  Q.  B.  533. 
Keerlt;.  Bridgets,  10Sni.&  Mar.  612;  i  Ludington  v.   Bell,  77  N.  Y.   138 
Moore    V.    Lackman.    52    Mo.    323;  (33   Am.  Rep.  601).     See,  also,  Max- 
Titus  V.    Todd,    25   N.   J.    Eq.    458;  well  u.  Day,  45  lud.  509. 
Waydell  v.  Luer,  3  Den.  410;  Gan-  2  Backus  v.  Fobes,  20  N.  Y.  204. 
dolf  V.  Appleton,  40  N.  Y.  533;  Lud-  SLoveridge  v.  Lamed,  7  Fed.  Rep. 
ington  V.  Bell,  77  N.  Y.  138  (33  Am.  294;    Tyner  v.    Stoops,   11    Ind.    22; 
Rep,  601);  Bank  v.  Green  40  OIi.  St.  Maxwell  v.  Day,  45  Ind.  509;  Lingen- 

640 


PAYMENT,  NOVATION  AND  MERGER. 


§625. 


ditional  security,  as  a  mortgage  upon  his  own  individual 
property.^ 

The  individual  note  of  one  or  all  the  partners  may  be  pay- 
ment, and  the  debt  of  all  may  become  the  debt  of  one  if  so 
agreed  by  the  creditor.  The  question  of  such  intent  is  one 
of  fact  for  the  jury.^ 

§  525.  Note  of  ostensible  partner. —  Taking  the  note  of 
ostensible  partners  is  no  discharge  of  a  dormant  partner,  for 
the  creditor  cannot  be  regarded  as  intending  to  part  with  a 
security  of  which  he  was  ignorant.'    Nor  will  any  of  the 

felser  v.  Simon,  49  id.  82;  Harrison    that  taking  a   mortgage   from   one 


V.  Pope  (Iowa  Dist.  Ct.  1855),  4  Am. 
Law  Reg.  (O.  S.)  313;  Folk  v.   Wil- 


partner  is  an  extinguisliment  of  the 
debt,  Loomis  v.  Ballard,  7  Up.  Can. 


son,    21  Md.  538;  Hotchin  v.  Secor,  8  Q.  B.  866. 

Mich.  494;  Keerl  v.  Bridgers,  10  Sm.  2  Thompson  v.  Percival.  5B.  &  Ad. 

&  Mar.  (18  Miss.)  613;  Rose  v.  Baker,  925;  Hopkins  v.  Carr,    31  Ind.  260- 

13  Barb.  230;  Wilson  v.  Jennings,  4  Maxwell  v.  Day,  45  id.  509;  Hotchin 

Dev.    L.  90;  Horsey  r.   Heath,  5  Oh.  v.  Secor,  8  Mich.  494;  Keerl  u.  Bridg- 


353;  McKee  v.  Hamilton,  33  Oh.  St. 
7;  Tyson  v.  Pollock,  1  Pa.  375;  Allen 
V.  Owens,  2  Spears  (S.  Ca.),  170;  Nich- 
ols V.  Cheaii's,  4  Sneed,  229 ;  Dillon  v. 
Kauffman,  58  Tex.  696;  Hoeflinger  v. 
Wells,  47  Wis.  G28 ;  Booth  v.  Ridley, 
8  Up.  Can.  C.  P.  4U;  Port  Darlington 
Harbour  Co.  v.  Squair,  18  Up.  Can. 


ers,  10  Sm.  &  Mar.  612;  Mason  v. 
Wickersham,  4  W.  &  S.  100;  Tyson 
V.  Pollock,  1  Pa.  375;  Stephens  v. 
Thompson,  28  Vt.  77 ;  Dages  v.  Lee, 
20  W.  Va.  584;  Port  Darlington  Har- 
bour Co.  V.  Squair,  18  Up.  Can.  Q.  B. 
533.  In  Rose  v.  Baker,  13  Barb.  230, 
A.  &  B.,  being  partners  in   buying 


Q.  B.  533.    Contra,  Anderson  v.  Hen-  wheat,  C.  let  A.  have  $o00  wiiich  was 

shaw,  2  Da3%  272.     In  Maine,  Massa-  used  in  buying  gi'ain  for  the  firm, 

chusetts,  Vermont,  and  formerly  in  and   was  i-egarded   by  the  court  as 

Arkansas  (but  not   now,   see  Brug-  constituting  a  partnership  debt.     A 

man  v.  Maguire,  32  Ark.  733),  giving  few  days  afterwards  A.  gave  C.  his 

a  note  is  prima  facie  absolute  pay-  individual  note,  and   a  year  after- 

ment,  though  rebuttable.     If  paper  wards,  and  after  dissolution,  A.  paid 

is  outstanding  in  the  hands  of  third  part  and  gave  his  individual  note  for 

persons,  it  is  to  be  allowed  for  as  a  the  balance.    It  was  held  tiiat  C.  still 

part  payment,  Getchell  v.  Foster,  106  had  a  claim  against  the  firm. 

Mass.  42.  *  Robinson  v.  Wilkinson,  3  Price, 

iLoveridge  v.  Larned,  7  Fed.  Rep.  538;  Sneed  v.  Wiester,  2  A.  K.  Mar. 

294;  Maxwell   v.   Day,  45  Ind.   509;  277;  Scott  v.  Colmesnil,  7  J.  J.  Mar. 

Harrison  v.  Pope  (Iowa  Distr.    Ct.  416;  Baring  r.  Crafts,  9  Met.  380,  394; 

1855),  4  Am.  Law  Reg.  (O.   S.)313;  Watson  r.  Owens,    1  Rich.  L.   Ill; 

Baxter  v.  Bell,  86  N.  Y.  195;  Pierce  Nichols  tj.  Cheairs,  4  Sneed,  229;  Vac- 

V.  Cameron,  7   Rich.  L.    114;  Dillon  euro  u.  Toof,  9  Heisk.  194. 
V.  Kauffman,  58  T(  x.  096.     Contra, 

541 


§526.  CONDUCT  OF  THE  BUSINESS. 

acts  which  arc  usually  held  to  be  a  discharge  have  that  effect 
upon  a  dormant  partner  for  the  same  reason.^  Perhaps 
even  though  the  note  be  under  seal.'' 

§  520.  Note  in  firm  name  after  dissolution. —  As  a  partner 
has  no  power  after  dissolution  to  bind  the  firm  by  new  con- 
tracts, a  note  in  the  firm  name  after  dissolution,  unless 
made  with  the  assent  of  all  the  partners,  binds  only  the  per- 
son who  made  it.  Such*  a  note,  therefore,  does  not  extin- 
guish the  debt,  for  the  firm  cannot  insist  that  it  is  bad  to 
create  a  debt  and  yet  good  to  pay  one,  and  the  creditor  not 
having  what  was  designed,  namely,  a  partnership  note,  no 
intent  to  release  the  other  partners  will  be  presumed  on 
his  part,  although  he  may  have  surrendered  the  original 
paper.' 

In  Miller  v.  Miller,  8  W.  Va.  542,  M.,  of  M.  &  Co.,  in  order  to 
raise  money  for  the  firm,  procured  R.  M.,  who  did  not  know  who 
the  other  partners  were,  to  indorse  its  paper,  and  K.  cashed  the 
paper,  knowing  who  they  were,  and  the  proceeds  went  into  the 
firm;  then  C,  one  of  the  partners,  retired,  publishing  a  notice  of 
dissolution;  then  K.  agreed  to  reneAv  the  note  with  the  same  in- 
dorser,  and  R.  M.  indorsed  the  renewal,  not  knowing  of  any  change 

1  Robinson  v.  Wilkinson,  3  Price,  Perrin  v.  Keene,  19  Me.  355;  36  Am. 
538.  Whether  a  sealed  note  by  one  Dec.  759 ;  Parliam  Sewing  Mach.  Co. 
partner  in  the  firm  name,  without  v.  Brock,  113  Mass.  194;  Goodspeed 
authority,  will  merge  the  antecedent  v.  South  Bend  Plow  Co.  45  Mich.  237; 
or  contemporaneously  incurred  debt,  Yarnell  v.  Anderson,  14  Mo.  619; 
see  §  420.  Moore  u.  Lackman,  53  id.  333;  Ver- 

2  Chamberlain  v.  Madden,  7  Rich,  non  v.  Manhattan  Co.  23  Wend.  183; 
(S.  Ca.)  L.  39.">;  B.'ckford  v.  Hill,  124  17  id.  524;  Gardner  v.  Conn,  34  Oh. 
Mass.  588.  Contra,  that  the  sealed  St.  187;  Burris  v.  Whitner,  3  S.  Ca. 
instrument  merges  the  simple  con-  510;  Seward  v.  L'Estrange,  36  Tex. 
tract  debt.  Davidson  u.  Kelly,  1  Md.  295;  Torrey  v.  Baker,  13  Vt.  453; 
492;  Ward  v.  Mutter,  2  Rob.  (Va.)  Parker  v.  Cousins.  2  Gratt.  373;  44 
536.  But  a  subsequent  firm  note  re-  Am.  Dec.  388;  Miller  v.  Miller,  8  W. 
vives  the  original  debt  again.  David-  Va.  542.  Co?ifr(f,  that  it  merges  the 
son  V.  Kelly,  1  IMd.  493.  debt.  Fowler  v.  Richardson,  3  Sneed, 

3  Spenceley  v.  Greenwood,  1  F.  &  508.     In  an  action  upon  such  note  re- 
F.  297,  where  it  seems  to  have  been  covery  upon  the  original  considera- 
left  to  the  jury;  Myatts  v.  Bell,  41  tion  may  be  had.     Perrin  v.  Keene 
Ala.  222;  Ray  burn  v.  Day,  27  111.  46;  and  Burris  v.  Whitner,  supra. 
Turnbow  v.  Broach,    12  Bush,   455; 

542 


PAYMENT,  NOVATION  AND  MERGER.  §  627. 

in  the  firm,  and  ultimately  had  to  pay  it.     He  can  recover  of  the 
firm,  including  C,  for  the  renewal  is  not  payment. 

In  Goodspeed  v.  South  Bend  Plow  Co.  45  Mich.  237,  a  firm  gave 
an  order  for  goods  payable  in  a  note  without  interest,  and  the  firm 
dissolved  without  notice  to  or  knowledge  of  the  vendor,  who  shipped 
the  goods  after  dissolution,  and  the  partner  who  had  ordered  them 
sent  a  note  bearing  ten  per  cent,  interest  after  the  vendor  had 
notice  of  the  dissolution.  The  retiring  partners  are  not  liable  on 
the  note,  for,  although  agreed  to  be  given,  it  varied  from  the  pro- 
posed terms,  and  hence  was  not  binding  after  dissolution  and  is 
not  payment,  and  they  are  liable  on  the  original  account. 

§  527.  Nor  is  the  individual  note  of  one  partner  after  dis- 
solution payment  of  a  firm  debt  without  proof  of  agreement 
to  that  effect,^  especially  if  the  partnership  note  is  not  sur- 
rendered.'^ 

But  a  mere  neglect  to  surrender  the  partnership  note  does  not 
invalidate  an  agreement  to  accept  the  note  of  one  partner  with  a 
third  person,  as  payment,  nor  constitute  failure  of  consideration.' 

Acts  and  declarations  inconsistent  with  an  intent  to  take  the 
note  merely  as  collateral  ma}'  be  shown.''  And  a  surrender  of  the 
partnership  note  and  marking  it  canceled,  and  taking  the  note  of 
an  individual  partner,  was  held  to  be  meaningless  unless  done  for 
payment;*  and  the  note  of  a  third  person  in  exchange  for  the  firm's 

1  Swire  u.  Redman,  1  Q.  B.  D.  536;  discharged  by  an  extension  of  time 

Medberry  v.    Soper,    17    Kan.    369 ;  to  the  primary  debtor.     §  534.    And 

Yarnell    v.    Anderson,  14    Mo,    619;  where  a  note  is  considered  as  higher 

Leabo    v.    Goode,    67    id.    126;  Ells-  security  than  a  simple  contract  debt 

wanger  v.  Coleman,  7  Mo.  App.  583 ;  it  may  be  a  merger  of  it.     Isler  v. 

Rose  V.  Baker,  13  Barb.  230;  Leach  Baker,  6  Humph.  85. 

V.   Kagy,    15  Oh.  St.    169;   Little  v.  2  Estate  of  Davis,  5  Whart.  530 ;  34 

Quinn,  1  Cint.  Superior  Ct.  Rep.  379;  Am.    Dec.    574;   Little  v.   Quinn,    1 

Estate  of  Davis,    5  Whart.    530  (34  Cint.  Superior  Ct.  Rep.  379.  And  see 

Am.    Dec.    574) ;    Mason  v.   Wicker-  Kimberly's  Appeal  (Pa.),  7  Atl.  Rep. 

sham,  4  W.  &  S.  100;  Nightingale  v.  75. 

Chaffee,  11   R.   I.  609  (23  Am.  Rep.  SDages  v.  Lee,  SO  W.  Va.  584. 

r31).  See,  also,  Featherstone  u.  Hunt,  ^Bank  v.   Green,  40  Oh.  St.   431. 

1   B.  &  C.    113;  2  Dow.  &  Ry.  233.  And  see  Hoopes  v.  McCan,    19  La, 

Unless,  in   many  states,  he  assumed  Ann.  201. 

all  the  debts,  so  that  the  other  part-  5  Moore  v.  Lackman,  53  Mo.  323. 
ner  became  in  effect  a  surety,  who  is 

643 


§  528.  CONDUCT  OF  THE  BUSINESS. 

paper  was  held  to  be  a  discharge,  except  where  some  of  the  names 
were  forged." 

So  if  the  note  is  accepted  as  a  payment  or  merger  of  the  debt 
the  other  partner  is  released."  Exchanging  a  partnership  note 
after  dissolution  for  a  note  signed  by  each  partner  was  held  to  have 
converted  the  debt  into  the  separate  debt  of  each  partner/  And 
so  is  taking  the  note  of  each  partner  for  a  proportion  of  the  debt.^ 

Where  a  firm  of  two  partners  assigned  for  benefit  of  creditors, 
with  a  condition  that  the  assignment  should  inure  to  those  alone 
who  would  look  to  each  partner  individually  for  half  the  balance, 
and  the  creditors  covenanted  to  look  to  each  for  the  half  only,  this 
was  held  to  be  no  severance  of  the  debt  until  or  unless  the  part- 
ners covenant  individually  to  pay  the  half,  and  hence  an  action 
must  be  against  both.' 

§  528.  Of  coiitiuiiiii?  partner  who  assumed  debts. — 
Where  one  of  the  partners  retires  and  the  other  assumes  the 
debts  and  continues  the  husiness,  the  creditor  taking  the 
paper  of  the  continuing  partner  shows  an  assent  to  the 
change  and  will  be  deemed  to  look  to  the  latter  alone.  This 
also  involves  in  many  jurisdictions  the  position  of  the  retir- 
ing partner  as  a  surety,  who  is  released  by  an  extension  of 
time  to  the  principal.     This  will  be  next  examined. 

Thus,  in  Evans  v.  Drummond,  4  Esp.  89,  two  partners  gave  a 
bill  and  dissolved,  and  it  was  renewed  by  the  continuing  partner. 
The  creditor  knowing  of  the  change  in  the  firm,  the  other  partner 
was  held  to  be  released.* 

In  Thompson  v.  Percival,  5  B.  &  Ad.  925,  A.  &  B.,  partners,  dis- 

1  Pope  V.  Nance,  1  Stew.  (Ala.)  354;  »  Le  Page  v.  McCrea,  1  Wend.  164 
Nance  v.  Pope,  id.  230.  (19  Am.  Dec.  469). 

2  Smith  V.  Turner,  9  Bush,  417;  ^This  was  followed  in  Rred  v. 
Bowyer  v.  Knapp,  15  W.  Va.  277 ;  White,  5  Esp.  122,  and  Springer  v. 
Macklin  v.  Crutciier,  6  Bush,  401.  Shirley,  11  Me.  204.      In   Hoopes  v. 

aCrooker  v.  Crooker,   52  Me.   267;  MeCan,    19    La.  Ann.  201,  the  note 

Bowyer  v.   Knapp,   15   W.  Va.  277;  was  in  full  settlement.     Townsenda 

Arnold  v.  Camp,  12  Jolins.  409.  v.  Stevenson,  4  Rich.  (S.  Ca.)  L.  59, 

*  Maxwell  v.  Day,  45  Ind.  409 ;  but  here  the  firm's  notes  were  sur- 
Luddington  v.  Bell,  77  N.  Y.  138;  33  rendered  on  taking  those  of  the  con- 
Am.  Rep.  (101  (rev.  11  J.  &  Sp.  tinuing  partners.  Contra,  Keating  v. 
557).  Sherlock,  1  Cint.  Superior  Ct.  Rep.  257. 

644 


PAYMENT,  NOVATION  AND  MERGER.  §  529. 

fiolved,  B.  continuing  tlie  business  and  assuming  all  the  debts,  and 
having  sufficient  partnership  assets  left  with  hira  for  the  purpose. 
C,  a  creditor,  who  knew  of  these  facts,  was  informed  that  A.  did 
not  know  that  the  firm  was  indebted  to  him  and  that  he  must  look 
to  B.  alone,  and  he  assented  and  drew  on  B.,  who  accepted  the  bill. 
This  was  held  evidence  to  go  to  the  jury  of  C.'s  assent  to  look  to 
B.  alone.  •  The  court,  Denman,  C.  J.,  cites  Evans  v.  Druminond 
and  Reed  v.  White,  and  express  disapproval  of  David  v.  Ellice.' 

But,  even  in  this  case,  if  the  creditor  expressly  reserves  his  claim 
against  the  other  partners,  the  note  is  not  a  payment.''  And  merely 
drawing  on  the  continuing  partners  docs  not  establish  a  novation." 

§  o'lS).  Note  of  surviving  partners. —  A  note  by  surviving 
partners  for  a  partnership  debt  will  not  be  deemed  a  pay- 
ment unless  such  was  the  agreement,"*  though  the  creditor 
continue  to  deal  with  the  surviving  partner  and  receive  par- 
tial payments  from  him.^  An  agreement  to  accept  the  new 
firm  must  be  clearly  proved.® 

If  the  creditor  did  not  know  of  the  death  or  other  dissolu- 
tion, and  the  new  firm  is  in  the  same  name  as  the  old,  their 
note  is,  of  course,  not  an  extinguishment  of  the  debt.' 

'In  David  u.  Ellice,  5  B.  &  C.  196;  Leach  v.    Cluircli,   15    Oh.    St.   1G9; 

7  D.&  R.  690,  affiimiug  1  C.  &  P.  308,  Titus  v.  Todd,  20  N.  J.  Eq.  438;  Boat- 

A.,  B.  &  C,  partners,  were  indebted  men's   Sav.  Instit.   v.    Mead,  52   Mo. 

to  D.     A.  retired.     B.  &  C.  abSiimed  518,    but   iiere    there  was  a  special 

the  debts,  of  which   D.  had  notice  stipulation  that  the  estate  of  the  de- 

and    assented   to  a   transfer  of   his  cedent  should    not   be    discharged, 

claim  upon  tlie  books  of  B.  &  C.  to  See   Thompson  v.   Percival,  5   B.  «fc 

themselves.     lie  afterwards  drew  on  Ad.   925. 

the  new  firm  and  they  accepted,  paid  5  Hamersley  v.  Lambert,  2  Johns, 

part,  and  became  insolvent.     It  was  Ch.  508;  Fogarty  v.  Cullen,  49  N.  Y. 

held  that  A.  was  liable,  and   so  al-  Sups-rior  Ct.  397. 

though  D.  could  have  collected  his  6  Fogarty  v.  Cullen,  49  N.  Y.   Su- 

debt  before.  perior  Ct.  1G9;  Lrach  v.  Church,  15 

2  Bedford  v.  Deakin,  2  B.  &  Aid.  Oli.  St.  1G9;  Bank  v.  Green,  40  Oh. 
210;  Boatmen's  Sav.  Instit.  v.  Mead,  St.  431.  Contra,  that  a  note  of  tbe 
53  Mo.  543.  new  firm  is  prima  facie  a  payment. 

3  Skannel  v.  Taylor,   12  La.  Ann.  Lewis  v.  Davidson,  39  Tex.  GGO. 
773.  1  Mason  v.  Tiffany,  45  111.  392 ;  Ber- 

4  Re  Clap,  2  Low.  226,  although  the  nard  v.  Torrance,  5  Gill  &  J.  383  • 
old  note  was  surrendered ;  Thompson  Buxton  v.  Edwards,  184  Mass.  567; 
V.  Briggs,  8  Foster  (28  N.  H.),  40 ;  First  Nal'l  Bk.  v.  Morgan,  73  N.  Y. 
Mebane  v.   Spencer,    6  Ired.  L.  423 ;  593  (aff.  G  Hun,  346). 

Vol.  1  —  85  545 


§  olio.  CONDUCT  OF  THE  BUSINESS. 

§  530.  Creditor  and  debtor  becoming  partners.— Compli- 
cations of  an  interesting  sort  occasionally  arise  by  the  forma- 
tion of  a  partnership  between  a  debtor  and  creditor.  If  the 
debt  is  not  implicated  in  the  partnership,  no  reason  is  per- 
ceived why  it  is  not  still  enforcible  at  law  as  any  cause  of 
action  between  partners  dehors  tlie  firm  may  be,  as  will  be 
shown  hereafter.  And  if  the  debt  is  contributed  by  the  cred- 
itor as  his  share  of  the  capital,  the  debtor  partner  is  debtor 
to  that  extent  still,  and  the  note  representing  his  debt  is 
still  in  force. 

In  Cunningham  v.  Ihmsen,  63  Pa.  St.  351,  A.  gave  to  liis  cred- 
itor I.  a  bond  and  warrant  to  confess  judgment.  A.  &  I.  then 
formed  a  partnership,  I.  contributing  the  bond  as  his  share  of  the 
capital,  it  being  agreed  that  on  dissolution  he  should  have  it  back. 
On  dissolution  and  redeliverj'^  of  it  to  I.,  he  entered  up  judgment 
on  it,  and  issued  execution,  and  a  subsequent  execution  creditor  of 

A.  attacked  its  validity.  The  court  held  that,  not  being  fraudulent 
in  fact  as  to  creditors,  it  was  not  merged  in  the  partnership,  and  a 
stranger  could  not  assail  it  on  that  ground. 

In  Mitchell  v.  Dobson,  7  Ired.  Eq.  (N.  Ca.)  3i,  A.  &  B.,  partners, 
gave  a  partnership  note  to  their  creditor  C,  and  then  dissolved,  B. 
assuming  all  the  debts.    B.  &  C.  afterwards  formed  a  partnership, 

B.  contributing  the  note  as  part  of  his  capital.  The  note  was  held 
not  to  be  thereby  extinguished. 

In  Gulick  V.  Gulick,  16  N.  J.  L.  186,  A.  &  B.,  partners,  made  a 
note  to  the  plaintiff.  They  then  dissolved  by  A.  buying  out  B.  and 
assuming  all  the  debts,  and  giving  his  note  for  the  purchase  money 
to  B.  with  the  plaintiff  as  surety.  A.  and  the  plaintiff  then  went 
into  partnership  in  the  same  kind  of  business.  It  was  held  that 
plaintiff  could  enforce  his  note  against  A.  &  B.  His  going  security 
for  A.  &  B.  does  not  release  their  joint  liability.  He  had  a  right  to 
go  into  partnership  with  A.,  and  his  doing  so  does  not  make  the 
joint  liability  several. 

In  an  action  on  a  partnership  note  against  the  surviving  partner, 
the  fact  that  the  plaintiff  and  the  deceased  partner  had  covenanted 
to  indemnify  the  surviving  partner  against  debts  of  the  firm,  and  all 
actions  on  them,  was  held  a  bar  to  the  suit  to  avoid  circuity  of  ac- 
tions.' 

»  Whitaker  r.  Salisbury,  15  Pick.  534. 

546 


PAYMENT,  NOVATION  AND  MERGER.    .    §  531. 

Where  D.,  b3ing  indebtel  to  0.  and  others,  conveyed  all  his 
business  to  0.,  who  then  conveyed  it  to  F.,iu  trust  to  pay  D.'s  debts, 
and  hold  the  balance  for  D.  0.  then  went  into  partnership  with 
F.  in  the  businass  for  some  years.  Losses  having  occurred,  0.  was 
hehl  estoppsd  to  enforce  the  trust,  for  he  has  rendered  it  impossible, 
and  F.  having  conveyed  the  property  back  to  D.,  and  hence  O.'s 
creditors  cannot  enforce  the  trust  and  collect  payment  therefrom.' 

§  o.'Jl.  Payment  by  one  extinguishes  debt  as  to  all. —  Part- 
ners being  all  liable  for  debts,  and  being  unable  to  sue  each  at 
law,  for  reasons  elsewhere  given,  it  follows  that  if  one  part- 
ner pays  a  debt  or  judgment  he  cannot  keep  it  alive  by  sub- 
rogation, bat  the  liability  is  extinguished,  and  the  payment 
is  a  mei'e  item  in  the  general  account.^ 

There  is  no  reason,  however,  for  extending  the  rule  to  the 
purchase  by  one  firm  of  a  note  made  by  another  firm  hav- 
ing a  common  partner  with  it,  and  though  the  former  firm 
is  under  a  disability  to  sue  its  indorsee  is  not.' 

On  the  other  hand,  where  the  protection  of  the  partner 
who  pays  a  debt  of  the  firm  makes  it  equitable,  he  has  been 
allowed  to  keep  the  debt  alive  and  to  be  subrogated  to  the 

IWilkins  r.  Fitzhugh,  48  Mich.  78.  took  to  keep  the  judgment  alive 
ZBaillett  V.  Waring,  4  Ala.  688,  against  the  bail  of  the  other  partner, 
where  the  fidminiblrator  of  a  de-  Holding  also  that  after  such  pay- 
ceased  partner  paid  a  judgment  i"t*nt  the  bail  cannot  arrest  the  other 
against  liimself  and  the  survivor,  partner,  for  the  debt  is  paid.  Dana 
(Coji^m,  Sells  r.Hubbell,  2  Johns.  Ch.  v.  Conant,  30  Vt.  246,  where  one 
394);  Hoganu.  Reynolds,  21  Ala.  f)6  (56  of  an  indorsing  lirm  took  up  the 
Am.  Dec.  230),  where  one  partner  fur-  note,  and  subsequently  reissued  it 
nished  money  to  a  stranger  to  pay  to  his  individual  creditor.  Hardy 
the  judgment  and  hold  it  alive  over  v.  Norfolk  Mfg.  Co.  80  Va.  404, 
the  others;  Le  Page  v.  McCrea,  1  where  the  partner  who  paid  a  debt 
Wend.  164(19  Am.  Dec.  409),  where  secured  by  mortgage  took  assign- 
the  creditor,  after  compromise  by  ment  of  it,  and  attempted  to  reas- 
one  partner  against  the  other,  under-  sign  it  to  another  person.  Conrad 
took  to  keep  the  other  alive.  Booth  v.  Buck,  21  W.  Va.  396,  where  the 
V.  Farmers'  &  Mech.  Bk.  74  N.  Y.  228  assignee  of  one  partner  for  benefit 
(aflf.  11  Hun,  -iSS),  a  judgment  on  a  of  creditors  paid  a  firm  note  to  pre- 
note  Kigned  by  four  partners,  and  vent  its  being  sued  in  order  that  he 
indorsed  by  the  filth;  the  latter  paid  might  sell  property  at  his  leisure; 
it;  he  cannot  hold  it  over  tiie  others,  ho  does  not  become  assignee  of  the 
Hinton  v.  OJenheimer,  4  Jones,  Eq.  note. 

408,  where  the  paying  partner  under-       spulton  v.  Williams,  11  Cush.  108. 

547 


§  531.  CONDUCT  OF  THE  BUSINESS. 

securities  or  the  judgment  incident  to  the  debt.  This  is  not 
allowed  that  he  may  make  a  profit  out  of  it,  but  solely  as  a 
protection.' 

Thus  where  a  partner  pays  a  debt  of  the  firm  out  of  his  own 
money  which  the  firm  should  have  paid,  he  can  do  so  in  such  a 
way  as  to  show  an  intent  to  keep  the  debt  alive." 

So  an  administrator  of  a  partner  who  paid  the  whole  of  a  part- 
nership debt  has  been  substituted  to  the  creditor's  place  to  recover 
contribution  from  the  surviving  partner.'  Or  if  a  partner  pays  a 
mortgage  on  joint  property  which  the  other  should  have  paid,  he 
can  require  indemnity  through  the  mortgage;''  and  so  if  he  pays 
a  judgment  note  which  it  was  agreed  on  dissolution  should  be  paid 
by  the  copartner." 

Where  a  note,  and  mortgage  on  partnership  property  securing 
it,  were  made  by  a  firm,  a  partner  was  deemed  entitled  to  insist  on 
foreclosure  before  personal  judgment  against  him  on  the  note,  and 
if  sued  on  the  note,  and  has  to  pay  it,  it  was  held  would  be  subro- 
gated to  the  mortgage.' 

But  a  partner  who  has  partnership  funds  in  his  hands  has  no 
such  right.  Thus  where  a  firm,  with  others,  became  incorporated, 
but  by  reason  of  continuing  business  in  the  firm  name  are  made 
liable  to  a  creditor  of  the  corporation;  and  after  the  death  of  one 
partner  the  corporation  assigns  for  the  benefit  of  creditors  to  the 
surviving  partner,  and  he  pays  a  judgment  creditor  in  full,  having 
assets  of  the  corporation  to  do  it  with,  but  for  fear  of  being  liable 

1  Coleman  v.  Coleman,  78  lud.  344;  signee  could.     He  was  not  an  active 

Booth  V.  Farmers'  &  Mech.  Bank,  74  partner.     Cliappell  v.  Allen,  38  Mo. 

N.  Y,  228  (aff'g   11  Hun,  258),  where  213,  where  a  partner  who  iiud  taken 

a  judgment  was  allowed  to  stand  as  up  partnership  notes  with  liis  own 

security  for  any  balance  that  might  money  was  allowed  to  assign  them 

be  found  due  on  an  accounting.  to  pay  his  private  debt. 

niclntire  v.  Miller,  13  M.  &  W.  3  In  Sells  v.  Hubbell,  2  Johns.  Ch. 

725,  where  a  member  of  a  joint  stock  394;  Dahlgren  v.  Duncan,  7  Sm.  & 

company,    making    such    payment,  Mar,    280;  but    contra,    Bartlett    v. 

had  the  debt  transferred  to  a  trustee  Waring,  4  Ala.  688,  supra. 

for  himself.     Kipp  v.  McChesncy,  06  ^Laylin  v.  Knox,  41  Mich,  40. 

Ill,  400,  where  a  partner  in  a  sort  of  *  Brown   v.  Black,  96  Pa.  St.  482 ; 

joint  stock  concern  bought  its  notes  Suydam  v.  Cannon,  1   Houst,  (Del.) 

with  his  own  money  as  an  invest-  431,  and  see  the  cases  cited  in  the 

ment,  it  was  held  that,  though  he  next  section. 

could  not  sue  upon   them,    his  as-  ^  Warren  v.  Hayzlett,  45  Iowa,  235. 

548 


PAYMENT,  NOVATION  AND  MERGER.  §  632. 

to  other  creditors  of  the  corporation  seeks  to  charge  the  payment 
as  made  by  himself  instead  of  by  the  fund,  and  attempts  to  re- 
cover one-half  of  it  from  the  estate  of  the  deceased  partner,  it  was 
held  that  he  should  have  charged  the  fund  and  could  not  recover.' 


RETIRING  PARTNER  AS  SURETY. 

§  532.  Inter  se. —  Where  a  partner  retires  from  the  firm 
under  an  agreement  by  the  continuing  partners  to  assume 
or  pay  all  liabilities,  he  acquires  as  between  the  partners, 
^respective  of  the  rights  of  creditors,  which  will  be  here- 
after considered,  the  rights  of  a  surety.  Hence,  if  he  is 
compelled  to  pay  a  debt  of  the  firm,  he  can  set  off  the 
amount  against  the  continuing  partners' claim  against  him.* 
And  a  debt  of  the  firm  which  he  is  compelled  to  pay  will  be 
kept  alive  for  his  benefit,  or  he  can  have  the  judgment  as- 
signed to  him;^  and  he  is  entitled  to  be  subrogated  to  all 
securities  held  by  or  for  the  creditor,*  and  to  participate  with 
creditors  of  the  new  firm  on  distribution  of  its  assets  in 
insolvency  or  bankruptcy.'  On  being  sued,  he  can  apply  to 
court  to  compel  the  continuing  partners  to  pay  debts.' 

If  the  continuing  partners  have  given  the  retired  partner  a 
bond,  with  security,  conditioned  to  pay  off  liabilities  and  become 

1  Willey  V.  Thompson,  9   Met.  339.  Frow,  Jacobs  &  Co.'s  Appeal,  73  Pa. 

aRotlgers  v.  Mdw,  15  M.  &  W.444;  St.  459;  Scott's  Appeal,  86  id.  173. 
S.  C.  4  Dow.  &  L.  06; or  sue  them  in       spiow,   Jacobs    &    Co.'s    Appeal, 

assumpsit,  Shamburg  v.  Abbott,  113  siqjra;  Moody  v.  King,  2  B.  &  C.  558. 
Pa.  St.  0;  Hupp  v.  Hupp,   6  Gratt.        «See  g§  554,  634-641,  and   West  v. 

810.  Chasten,  12  Fla.   315;  and  see  Kin- 

sSuyd.im    v.    Cannon,    1    Houst.  ney  r.  McCullough,  1  Sandf.  Ch.  370; 

(Del.  )'131,  of  a  judgment;  Chandler  queried   but  not  decided  in  Croone 

V.   Higgiiis.    109  III.   C02;  Layliu  v.  v.     Bivens,    3     Head,    339;  and    so 

Knox.  41  Mich.  40;  Frow,  Jacobs  &  though  the  others  have  not  assumed 

Co.'s  Ai)peal,  73  Pa.  St.  459;  Brown  the  debts,  Morss  V.  Gleasou,   04  N. 

V.  Blick,  96  id.  482;  Redfield,  C.  J.,  y.  204  (aff.  3   Hun,  31 ;  4   Tliomp.  & 

In  ^tna  Ins.  Co.  v.  Wires,  28  Vt.  93.'  C.   274);  Ketcimm  v.   Durkee,  Hotf. 

And  see  Scott's  Appeal,  88  Pa.  St.  Ch.    538;  and  if  they  misapply   the 

173.  assets  ai'e  individually  bound  to  re- 

<Conwellu.  McCowan,  81  111.  285;  imburse  him  for  payments,  Peyton 

Johnson  v.   Young,  20  W.  Va.  614;  v.  Lewis,  13  B.  Mon.  356. 

549 


g  533.  CONDUCT  OF  THE  BUSINESS. 

insolvent,  the  payee  of  a  firm  note  may  avail  himself  of  the  bond 
as  in  other  ciuses  of  securities  held  by  a  surety.' 

Whether,  if  the  continuing  partner,  who  has  agreed  to  pay  the 
debts,  goes  into  bankruptcy,  the  retired  partner  can  prove  his 
claim  as  surety  as  the  holder  of  a  contingent  claim,  and  hence,  if 
he  fails  to  do  so,  the  claim  is  discharged  by  a  discharge  in  bank- 
ruptcy of  the  debtor.' 

Where  retired  partners  thus  become  sureties  and  the  new  firm 
creat  s  a  debt,  and  by  collusion  with  the  creditor  procures  him  to 
recover  judgment  against  them  with  the  new  firm,  and  the  retired 
partners  pay  part  of  it  in  separate  sums,  it  was  held  that  the}' 
could  join  in  an  action  against  the  actual  partners.' 

§  533.  As  to  creditors;  English  cases. —  In  183G  the  House 
of  Lords,  in  Oakeley  v.  Pasheller,  4  Clark  &  Fin.  207;  s.  C. 
10  Bligh,  N.  R.  548,  applied  the  doctrine  of  the  suretyship 
of  a  retired  partner  to  a  creditor,  and  held  that  if  a  part- 
ner retires,  and  his  copartners,  continuing,  assume  the 
debts,  and  a  creditor  of  the  firm  is  aware  of  this  (the  syl- 
labus is  of  course  wrong  in  stating  that  the  creditor  had 
no  notice),  the  continuing  partners  alone  are  the  principal 
creditors,  and  the  retiring  partner  but  a  surety  for  them, 
even  as  to  the  creditor,  and  with  the  rights  of  a  surety,  and 
therefor©  a  contract  between  the  creditor  and  continuing 
partners  extending  the  time  of  payment  releases  him.  In 
fact,  however,  in  that  case,  a  third  person  had  become 
partner  with  the  continuing  members,  and  the  creditor's 
taking  the  bond  of  such  new  firm  for  the  extended  debt 
was  a  substitution  of  debtors  or  novation,  and  therefore 
a  release  independent  of  the  assumption  of  suretyship  of  the 
retiring  partner. 

In  Rodger?  v.  Maw,  15  M.  &  W.  444;  s.  c.  4  Dow.  &  L.  GO,  the 
exchequer  in  1846  applied  the  doctrine  as  between  the  partners,  so 

iBui-nside  v.  Fetzner,  63  Mo.  107;  McLean,  11  Mil.  92.     For  oilier  lul- 

Wilson   V.   Stihvell,   14  Oh.  St.  4G4;  ings  that  the  retired  iiartncr  is  inter 

and  see  ij  (/o6.  se  a  surety,  see  Morss  v.  Gleason,  64 

2So  ht-Id   in    Fisher  v.   Tiflt.  127  N.  Y.  204  (S.  C.    below,  2   llun.  31; 

Mass.  313.     Contra,  Fisher  v.  Tifft,  4  Tliomp.  &  C.  274);  Bays  v.  Conner, 

12  R.  I.  56;  s.  C.  with  note,  18   Am.  lOo  Ind.  415. 

Law  Reg.    (N.    S.)   9,    and  Berry  v.       3  in  Abbot  v.  Johnson,  32  N.  H.  9. 

550 


PAYMENT,  NOVATION  AND  MERGER.  §  533. 

that  a  debt  assumed  by  the  continuing  partners,  which  the  retired 
partner  had  to  pay,  could  be  set  off  by  him  against  their  claim,  on 
his  agreement  to  pay  them  a  certain  sum  in  consideration  of  their 
assumption  of  debts.  This  case  is  undoubtedly  good  law  here  and 
in  England. 

In  Oakford  v.  European  and  Am.  Steam  Shipping  Co.  1  Hen.  & 
Mil.  182  (Cases  in  Chancery,  1863),  Oakeley  v.  Pasheller  was  called, 
p.  190,  a  strong  decision,  and  was  held  not  to  be  extended  to  dis- 
charge the  retired  partner  by  reason  of  acts  withiu  the  scope  of  tliO 
continuing  partners'  powers.  And  where  a  contract  between  the 
original  firm  and  a  third  person  provided  for  the  submission  of  dis- 
putes to  arbitrators,  one  of  whom  was  to  be  selected  by  the  firm, 
his  selection  by  the  continuing  partners  alone,  and  waiving  a 
doubtful  point  of  construction,  was  held  not  to  discharge  the  retired 
partner. 

In  Wilson  v.  Lloyd,  L.  R.  16  Eq.  60,  the  doctrine  of  Oakeley  v. 
Pasheller  was  applied  in  1873,  to  the  effect  that  a  composition  in 
bankruptcy,  whereby  creditors  agreed  to  take  their  claims  from 
the  continuing  partners  in  instalments,  was  held  to  release  the  re- 
tired partner  by  extending  the  time.  This  decision  is  of  doubtful 
authority  in  either  country,  for  in  Ex  parte  Jacobs,  10  Ch.  App. 
211,  it  was  disapproved,  and  a  creditor  voting  to  release  a  debtor 
in  bankruptcy  was  held  not  to  release  a  co-debtor.  The  debt  in 
this  case  was,  however,  a  several  note  signed  by  each. 

In  1876,  in  Swire  v.  Redman,  1  Q.  B.  D.  536,  Cockburn-,  C.  J., 
reading  the  opinion  explaining  Oakeley  v.  Pasheller,  and  showing 
that  Maingay  v.  Lewis,  Irish  Reports,  5  Com.  L.  229,  reversing  s.  c. 
3  id.  495,  which  had  followed  the  doctrine  under  protest,  and  by 
a  bare  majority  had  misunderstood  the  case  in  not  understanding 
that  the  creditor  had  assented  to  a  substitution  of  debtors,  holds 
that  partners  cannot  change  their  relation  to  their  creditor  without 
his  assent;  and  though  one  may  become  inter  se  a  surety,  yet  the 
creditor  can  treat  all  as  principals,  and  therefore  does  not  discharge 
a  retired  partner  by  giving  time  on  fresh  acceptances  to  the  con- 
tinuing partner  who  had  agreed  to  pay  debts.  This  ruling  is 
weakened  by  his  finding  that  a  previous  habit  of  the  partners  to 
renew  by  such  acceptances  before  dissolution  was  a  species  of 
authority  (which  I  submit  it  is  not). 

In  Bedford  t'.Deakin,  2  B.  Aid.  210;  s.  c.  2  Stark.  178,  there  had 
been  an  express  reservation  of  rights  against  the  retired  partner; 

551 


§  534.  CONDUCT  OF  THE  BUSINESS. 

and  in  Little  v.  Quinn,  1  Cint.  Super.  Ct.  379,  the  old  note,  had 
been  retained,  and  the  remedy  upon  it  had  therefore  not  been  ex- 
tended.* 

§  534.  American  cases. —  In  America  the  authorities 

are  divided  as  to  whether  a  retired  partner  has  the  rights  of 
a  surety  against  a  creditor  who  knows  of  the  fact  that  the 
continuing  partner  has  assumed  the  debts.  Following  the 
supposed  doctrine  of  Oakeley  v.  Pasheller,  and  holding  that 
he  has  such  right,  and  is  therefore  discharged  by  a  binding 
extension  of  time  on  the  debt,  given  without  his  assent,  or  a 
compromise  of  the  debt,  or  release  of  security  of  the  prin- 
cipal, are  the  following.^ 

Voting  for  the  discharge  in  bankruptcy  of  the  continuing  part- 
ner on  composition  of  his  debts  is  not  regarded  as  a  compromise, 
but  a  discharge  by  operation  of  law,  and  does  not  release  the  retired 
partner.' 

In  McClean  v.  Miller,  2  Cranch,  C.  C.  620,  where  the  continuing 
partner  with  the  creditor's  knowledge  received  all  the  effects,  and 
agreed  to  pay  the  debts,  and  the  creditor  makes  new  advances  ta 
him  on  his  individual  account,  it  was  held  that  the  creditor  could 
not  in  good  conscience  take  a  lien  on  the  effects  for  the  new  debt, 
so  as  to  render  the  retiring  partner  liable  on  the  old,  after  the  assets 
were  exhausted. 

In  McNeal  v.  Blackburn,  T  Dana,  170,  it  was  held  that  when  the 
creditor  became  security  for  the  continuing  to  the  retiring  part- 

>That  neglect  to  pursue  a  surviv-  Hun,  103);  Palmer  v.  Purely,  83  id. 

ing  partner  is   no  discharge  of  the  144;  Morrison  v.  Perry,   11  Hun.  3*; 

estate  of  the  deceased  partner,  see  Doild  t>.  Dreyfus,  17  Hun,  600;  57  How. 

Surviving  Partner.  Pr-  319  (latter  report  is  best);  Math- 

2Stone  V.  Chamberlin,  20  Ga.  2^)0;  ews  v.  Colburu,   1  Strob.  (S.  Ca.)  L. 

Hoopes  V.  McCan,  19  La.    Ann.  201;  258;  Johnson  v.  Young,  20  W.  Va. 

Barber  17.  Gillson,  18  Nev.  89;  Bell  r.  614;    Gates  u.  Huglies,  44  Wis.  332; 

Hall,  5  N.  J.  Eq.  477;  Wilde  v.  Jen-  Birkett  v.  McGuire,31  Up.  Can  Com. 

kins.  4  Paige,  481  ;  Tliurber  v.  Corbin,  PI.  430.  And  see  Smith  v.  Shelden,  .35 

51  Barb.  215;  s.  C.  as  Tliurber  u.  Jen-  Mich.  42,  and  cases  cited    in  g  533. 

kins,  36  How.  Pr.  66;  Maier  u.  Cana-  In  Bays  v.  Conner,  105  Ind.  415,  the 

van.  8  Daly,  272;  Savage  r.  Putnam,  creditor  had   apparently  agreed   to 

82  N.  Y.  501 ;  Miilerd  v.  Thorn,  56  id.  the  substitution  of  debtors. 
40-2;   Colgrove  v.  Tollman,  67  id.  95       3 Hill   v.  Trainer,  49  Wis    537;  Ex 

(23  Am.  Rep.  90);  (afT.  2  Lans.  97;  5  par/e  Jacobs,  10  Ch.  App.  211. 

552 


PAYMENT,  NOVATION  AND  MERGER.  §  534. 

ner  that  all  debts  should  be  paid,  he  has  released  the  retiring 
partner. 

Agreeing  with  the  latest  English  doctrine,  and  holding 
that  mere  knowledge  on  the  part  of  a  creditor  of  the  new 
arrangement  of  the  partners  does  not  make  him  a  party  to 
it,  and  that  they  cannot  change  their  relation  towards  him 
without  his  assent,  are  the  cases  in  the  subjoined  uote.^ 

Nor  can  he  notify  the  creditor  to  sue  pursuant  to  the  statute,  for 
the  statute  only  applies  to  those  who  were  sureties  from  the  bo- 
ginning.' 

In  Rawson  v.  Taylor,  supra,  it  was  said  that  such  agreement, 
with  notice,  would  impose  on  the  creditor  the  duty  of  acting  in 
good  faith  and  with  reasonable  diligence  in  the  preservation  of  liena 
and  application  of  payments. 

In  Faulkner  v.  Hill,  lOi  Mass.  188,  partners  pledged  goods  as 
collateral  for  a  debt  then  due  and  dissolved,  conveying  all  the  assets 
to  one  who  agreed  to  pay  all  the  debts,  and  they  empowered  him 
to  wind  up,  execute  releases,  etc.,  of  all  of  which  the  pledgee  had 
notice,  but  did  not  agree  to  substitute  L.  as  his  debtor.  L.  paid 
part  of  the  debt  and  took  back  from  the  pledgee  what  was  thought 
to  be  a  proportional  part  of  the  value  of  the  collateral,  but  in  fact 
a  much  more  valuable  part;  hence  the  sale  of  the  rest  did  not  pay 
the  remainder  of  the  demand,  L.  having  died  insolvent;  but  this 
excessive  delivery  to  L.  was  held  not  to  be  such  a  dealing  with  the 
collateral  as  to  make  the  pledgee  answerable  for  more  than  he  had 
received  —  the  syllabus  adds,  the  invoice  not  showing  that  it  was 
excessive,  but  this  is  not  in  the  opinion. 

Where  one  partner  retired,  leaving  assets  with  the  other  partner 
for  the  purpose  of  paying  debts,  and  a  creditor  covenanted  with  the 
latter  partner,  on  receiving  security  for  part  of  the  debt,  not  to  sue 
him,  and  consented  to  his  delivering  part  of  the  assets  to  a  surety 
for  the  firm,  this  does  not  release  the  retired  partner  be^'^ond  the 

1  Mason  v.  Tiffany,  45  111.  393;  Will-  Barb.  461,  and  Ward  v.  Woodburn, 

iams  V.  Boyd,  75  Ind.  286;  Aiken  v.  27  id.   o46,  which  of  course  nre  not 

Thompson,  43  Iowa,  506;  Smith  v.  law  in  bo  far  as  inconsistent  wiili  tlie 

Shelden,  35  Mich.  42;   24  Am.   Rep.  holdings  of  the  court  of  appeals  given 

529;  Hayes  v.  Knox,  41  id.  529;  Raw-  in  a  preceding  section.  See  also.  Nor- 

8on  V.  Taylor,  30  Oh.  St.  389;  27  Am.  ton  t\  Richards,   13  Gray,  15,  as  liin- 

Rep.  464 ;  Whittier  v.  Gould,  8  Watts,  ited  by  Fisher  v.  Tiff  C,  127  JIass.  313. 
485.  See,  also,  Umbarger  V.  Plume,  26       2Fenslerv.  Prather,  43  Ind.  119. 

553 


§  535. 


CONDUCT  OF  THE  BUSINESS. 


secured  part  of  the  debt,  because  the  assets  delivered  to  the  surety 
were  not  lost  to  the  defendant  partner.  The  fact  that  the  surety 
did  not  use  them  to  pay  debts  makes  no  difference,  for  that  is  not 
the  creditor's  fault.' 

MERGER. 

The  subject  of  the  merger  of  a  debt  m  a  sealed  instrument 
has  already  been  treated. ^ 

§  535.  Jiulgnieiit  against  one  partner. —  The  doctrine  of 
tlie  merger  of  a  debt  in  a  higher  security  applies  to  a  judg- 
ment on  a  partnership  debt  obtained  against  one  or  less  than 
all  the  partners.  The  nearly  universal  rule  is  that  this  ex- 
tinguishes recourse  on  the  partners  who  were  not  made 
parties,  though  judgment  is  not  collectible  on  execution. 
The  contrary  rule  laid  down  in  Sheehy  v.  Mandeville,  6 
Cranch,  254,  after  being  disapproved  in  England  and  in 
nearly  every  state  of  the  Union,  has  been  since  in  effect 
overruled  by  the  supreme  court  of  the  United  States.' 


»  Roberts  v.  Strang,  38  Ala.  5G6. 

2  i^  420. 

3  Brown  v.  Wooton,  Cro.  Jac.  73; 
Kend;i!l  v.  Hamilton,  4  App.  Cas. 
604 ;  S.  C.  below,  3  C.  P.  D.  403 ;  Ex 
parte  Higsins,  3  DeG.  &  J.  33;  Cam- 
befort  V.  (Jliapnian,  19  Q.  B.  D.  239; 
Musou  V.  Eldicd,  G  Wall.  2il ;  7  Am. 
Law  Reg.  (N.  S.)  402;  Wood  worth  v. 
Spnfford,  2  McLean,  1G8;  Sedam  v. 
Willi.iins,  4  id.  51;  Re  Herrick,  13 
Bnnkr.  Rig.  312;  Filley  v.  Piielps,  18 
Conn.  291,  oO.");  Suydam  v.  Cannon,  1 
Houst.  431 ;  Nicklatis  v.  Roach,  3Ind. 
78;  North  v.  Mudge,  13  Iowa,  596; 
Wiinn  r.  MeNulty,  7  111.  35o;  43  Am. 
Dec.  58;  Thompson  v.  Kmraert.  15  id. 
415;  Cnisliy  v.  Jeroloman,  37  Ind. 
264;  Bninett  v.  Juday.  38  id.  8G;  Hol- 
man  v.  Langtree,  40  id.  349;  Lingen- 
felser  v.  Simon,  49  id.  82;  Scott  v. 
Colniesnil,  7  J.  J.  Mar.  4lG;  Moale  v. 
IIol litis.  11  Gill  &  J.  11;  Loney 
V.  Bailey,  43  Md.  10;  Ward  v.  John- 


son, 13  Mass.  148;  Tinkum  v.  O'Neale, 
5  Nev.  93;  Stevenson  v.  Mann,  13  id. 
2G8,  274;  Nat'l  Bank  v.  Spnigue,  20 
N.  J.  Eq.  13,  31  (reversed  on  other 
points,  in  21  id.  530) ;  Robertson  v. 
Smith,  18  Johns.  459;  Penny  v.  Mar- 
tin, 4  Johns.  Ch.  566;  Peters  v.  San- 
ford,  1  Den.  224 ;  Averill  v.  Loucks,  6 
Barb.  19;  Olmstead  v.  Webster,  8  N. 
Y.  413;  Suydam  v.  Barber,  18  id.  468 
(rev.  6  Duer,  S4);  Sloo  v.  Lea,  18  Oh. 
279 ;  Anderson  v.  Levan,  I  Watts  &  S. 
334;  Smith  v.  Black,  9  Serg.  &R.  142; 
1 1  Am.  Dec.  686 ;  Nichols  v.  Anguera, 
2  Miles  (Pa.),  290;  Gaut  v.  Reed,  24 
Tex.  46,  55;  How  v.  Kane,  2  Pin. 
(Wis.)  531;  s.  c.  2Chaad.  222;  54  Am. 
Dec.  1")2.  Thci'e  are  a  few  author- 
ities to  the  contrary.  Sheehy  v.  Man- 
deville, G  Cranch,  254  (now  overruled, 
as  already  staled);  Watson  v.  Owens, 
1  Rich.  (S.  Ca.)  L.  Ill,  and  Union 
Bank  v.  Hodges,  11  id.  480,  in  both 
of  which  cases  tlie  non-joined  pait. 
4 


PAYMENT,  NOVATION  AND  MERGER.  §  537. 

Although  the  partners  who  were  not  made  parties  were 
secret  partners,  yet  all  claim  against  them  individually  is 
merged.^ 

§  530.  A  judgment  against  ostensible  partners  neverthe- 
less binds  the  interest  in  the  partnership  assets  of  dormant 
partners  who  were  not  made  parties  to  the  action.^  And 
where  some  of  the  partners  plead  the  personal  privilege  of 
iafanc}'',  and  judgment  is  therefore  against  the  adults  only, 
it  is  a  partnership  debt,  and  entitled  to  share  on  distribu- 
tion pari  passu  with  judgments  where  no  such  plea  was 
interposed.* 

In  Olmstead  v.  Webster,  8  N.  Y.  413,  it  was  held  that  the  vacat- 
ing of  the  judgment  by  mutual  agreement  of  the  plaintiff  and  the 
defendant  partner  would  not  revive  the  cause  of  action  against 
the  other  partner.  Probably,  however,  this  cannot  be  so;  for  aa 
the  judgment  no  longer  exists,  the  doctrine  of  merger  cannot  ap- 
ply; and  on  the  doctrine  of  election,  the  right  to  retract  is  open 
until  judgment,  and  besides  there  could  be  no  election  when  as 
here  the  other  partner  was  unknown. 

§  537.  Where  partners  are  jointly  and  severally  liable. — 

A  judgment  against  one  partner  upon  a  joint  and  several 
debt  is  not  a  merger  of  the  several  liability  of  the  other 
partners.* 

ners  were  unknown  to  the  plaintiff.  Anguera,  2  Miles  (Pa.),  290;  How  v. 

And,  vice  versa,  it  has  been  held  that  Kane,  2  Pin.  531 ;  s.  C.  2  Chand.  223 

a  joint  judgment  against  all  the  part-  (54  Am.  Dec.  152);  Mason  v.  Eldred, 

ners  bars  action  ou  a  note  given  by  6    Wall.    231,  238;  7  Am.  Law  Reg. 

one  or  more  of  them  for  the  same  (N.    S.)    403.      Contra,     Watson    v. 

debt.     Doniphan  v.  Gill,  1    B.  Mon.  Owens,  1   Rich.  (S.  Ca.)  L.  Ill,  and 

199.     But  see  the  principle  stated  in  Union  Bank  v.  Hodges,  11  id.  480. 

§537.  2  §1053. 

1  Kendall  v.  Hamilton,  4  A  pp.  Gas.  3g  149. 

504;  Lingenfelser  v.   Simon.  41)  Ind.  ^Kmg  v.  Hoare,  13   M.  &  W.  495; 

82;  Scott  V.  Colmepnil,  7  J.  J.  M.ir.  Traftou  v.  United  States,  3  Story,  C. 

416;  Moale  v.   HoUins,  11   Gill  &  J.  C.  646;  Sherman u.  Christy,  17Iowa, 

11;  Penny   v.    Martin,  4  Jolms.  Ch.  322;  Pierce  v.   Kearney,   5   Hill,  82; 

566;  Robertson   v.  Smith,  IS  Johns.  Oilman  u.  Foote,  22  Iowa,  500,  where 

459;  Olmstead  v.   Webster,  8  N.  Y.  one  partner   individually   signed    a 

413;  Anderson  V.  Levan,  1  Watts  &  note  made  by  his  firm,  and  a  judg- 

S.  334;  Smith  v.  Black,  9  Serg.  &  R.  ment    on    his    several     lability     as 

142  (11   Am.   Dec.  686);    Nichols  v.  maker   was   held  not   to  merge  the 

555 


g  538.  CONDUCT  OF  THE  BUSINESS. 

lu  some  states  there  are  statutes  providing  that  a  firm 
debt,  either  generally  or  on  negotiable  paper,  shall  be  re- 
garded as  joint  and  several,  or  permitting  a  judgment  to 
be  had  against  some  of  the  joint  debtors  without  operating 
as  a  merger,  as  in  Alabama,  Arkansas,  Colorado,  Dela- 
ware, Illinois,  Kansas,  Kentucky,  Maryland,  Missis- 
sippi, Missouri,  Montana,  New  Jersey,  New  Mexico, 
Pennsylvania  and  Tennessee.^ 

It  was  held,  also,  that  where  the  other  joint  debtor  was 
out  of  the  jurisdiction  a  judgment  against  the  resident  was 
not  a  merger.* 

In  Suydam  v.  Barber,  18  N.  Y.  468  (reversing  6  Duer,  34),  it  was 
held  that  as  a  judgment  in  Missouri  against  one  partner  was  not  a 
merger  the  same  effect  would  be  given  here  to  the  judgment.' 

§  538.  When  the  note  of  one  partner  is  taken  as  collateral 
merely,  or  if  the  note  of  a  new  firm  or  of  one  partner  after 
dissolution  is  not  a  payment  of  the  original  debt,  a  judg- 
ment upon  the  new  note,  if  not  paid,  has  no  greater  effect 
than  the  note  itself  had.* 


claim  against  the  firm.     But  see  the  2  Ells  v.  Bone,  71  Ga.  466;  Yoho  v. 

query  in   Smith  v.  Exchange  Bank,  McGovern,  43  Oh.  St.  11 ;  but  in  the 

26  Oh.  St.  141,  153,  as  to  a  judgment  latter  state  at  least,  the  proper  course 

against  a  drawer  who  is  also  a  mem-  is  to  make  all  the  partners  parties, 

ber  of  the  firm   which  accepted  a  take    judgment     against    those    on 

bill.  wliom   service   was   had,  and   file  a 

1  William  v.  Rogers,  14  Bush,  776;  petition  to  make  the  others  parties 

Bryant  v.  Hawkins,  47  Mo.  410,  and  to  the  judgment. 

Suydam  v.  Barber,  18  N.  Y.  468,  also  Sg.  p.  Mason  v.  Eldred,   and  Reed 

on   the   Missouri   statute;    Loney  v.  v.  Girty,  6  Bosw.  567,  which  case  is 

Bailey,  43  Md.  10;  Hyman  v.  Stad-  a  later  stage   of  Suydam  v.  Barber, 

ler,  63  Miss.  362;  Bennett  v.  Cadwell,  supra. 

70  Pa.  St.  253;  Lowry  v.  Hardwicke,  <OfTutt  v.  Scott,  47  Ala.  104,  129; 

4  Humph.  (Tenn.)  188,  and   Nichols  Brozee  v.   Poyntz,  3   B.    Mon.    178; 

V.  Ciieairs,  4  Sneed,  229;  and  in  Ma-  Hawks   v.  Ilinchcliff,    17   Barb.  492; 

Bon  V.  Eldred,  supra,  it   is  said  that  Bigelow  v.  Lehr,  4  Watts,  378;  Davis 

a  statute  of  Micliigan  providing  that  v.    Anable,  2  Hill,    339;  First  Nat'l 

Buch   judgment  is.  in   favor  of  the  B'k  v.  Morgan,  73  N.  Y.  593  (6  Hun, 

defendant,  only  evidence  of  the  ex-  346);  Kauffman  v.  Fisher,  3  Grant's 

tent  of  plaintiff's  demand,  alters  the  Cas.  (Pa.)  303;  Watson  v.   Owens,  1 

rule  and  permits  a  further  recovery  Rich.    L.    lll;Haslett    v.    Wother- 

agaiust  the  rest.  spoon,  2  Rich.   Eq.  395 ;  Carruthers 

556 


PAYMENT,  NOVATION  AND  MERGER.       §  539. 

In  one  case  one  partner  confessed  a  judgment  against  himself 
alone  without  the  creditor's  knowledge  or  ratification;  this  was 
held,  of  course,  not  to  merge  the  original  right  of  action  against 
the  firm.'  And  it  is  enacted  that  a  judgment  against  some  of 
joint  debtors  shall  not  bar  action  against  the  rest  in  District  of 
Columbia,  Iowa,  Kentucky,  Missouri,  New  Mexico  and  Ver- 
mont. 

§  539.  This  rule  of  merger  has  no  application  to  a  claim 
against  a  firm  where  one  partner  is  alive  and  the  other  dead. 
The  rule  that  the  decedent's  estate  cannot  be  pursued  unless 
there  are  no  available  firm  assets  nor  living  solvent  partner 
prevents  a  merger,  for  the  debt  is  no  longer  joint. '^ 

V.  Ardagb,  20  Grant's  Ch.  (Up.  Can.)  ence  that  the  creditor  could  and  did 

579.     See    Thurber    v.    Jenkins,    36  pursue  the  estate  first,  his  remedy 

How.    Pr.   66;   s.    C.    as  Tlnirber  v.  against  the  surviving  partner  was 

Corbin,  51    Barb.  215,  but  here  the  not  thereby  merged.     See  First  Nat'l 

note  itself  would  have  discharged  B'k  v.  Morgan,  73  N.  Y.  598  (aff'g  6 

the  retired  partner.  Hun,  346).    That  a  judgment  against 

iHaggerty  u.   Juday,  58  Ind.  154.  the  survi%'or  bars  proceedings  at  law 

See    similar    authorities    under   the  against  the  estate  of  decedent,  leav- 

Bubject  of  release  of  one  partner.  ing  a  remedy  in  equity  only.     Phil- 

2  Hence  in  In  re  Hodgson,  31  Ch.  son  v.   Bampfield,  1  Brev.   (S.  Ca.) 

D.  177,  it  was  held  to  make  no  differ-  203. 

557 


CHAPTER  Xn. 

CONVERSION  OF  JOINT  INTO  SEPARATE  PROPERTY. 

§  540.  In  speaking  of  the  nature  of  a  partner's  share  or 
interest  in  the  firm  (§  180),  it  was  shown  that  such  interest 
was  in  effect  a  right  to  share  in  the  surplus  left  after  dis- 
chai'ging  all  debts,  and  including  the  claims  of  individual 
partners  for  advances.  Each  partner  has  the  right  to  re- 
quire that  all  the  assets  be  applied  to  the  payment  of  debts, 
for  otherwise  his  own  liabihty  in  solido  for  them  all  would 
be  undiminished.  This  is  a  right  which  appertains  to  him 
personally,  and  not  to  the  partnership  creditors.  In  case 
the  assets  pass  under  the  control  of  the  courts  for  distribu- 
tion, either  by  reason  of  bankruptcy,  death,  or  suit  for  ac- 
counting and  dissolution,  not  only  will  the  rights  of  the 
partners  to  have  the  debts  paid  be  carried  out,  but  the  court 
will  subrogate  the  creditors  to  this  right,  and  treat  it  as  an 
obligation,  provided  it  had  not  been  parted  with  by  the  part- 
ners at  the  time  the  court  came  into  possession  of  the  fund. 
This  doctrine  of  the  partner's  lien  passing  to  the  creditors, 
when  the  court  is  distributing  the  funds,  is  extended  further 
in  some  jurisdictions  than  in  others,  and  in  many  is  accom- 
panied by  recognizing  a  correlative  priority  of  separate  cred- 
itors in  individual  property.  These  ramifications  of  the 
doctrine  will  be  explained  hereafter.^ 

Partners  have  the  same  right  to  terminate  their  joint  in- 
terest in  any  part  or  all  of  the  property  that  they  have  to 
dissolve  by  mutual  agreement.  This  can  be  done  by  divid- 
ing the  property  among  them,  or  by  selling,  or  giving  a  part 
of  it  to  one  of  their  number,  or  by  one  buying  out  his  co- 
partners.^ 

1  §  825.  to    settle    partnership    accounts    is 

2 After  the  fund  has  passed  into    pending,  the  court  may  refuse  to  en- 

the  control  of  court,  as  where  a  suit   force  a  give  or  take  contract  between 

558 


CONVERSION  OF  JOINT  INTO  SEPARATE  PROPERTY.     §  541. 

§  541.  Inchoate  transfers  inter  se. —  An  agreement  for 
the  conversion  into  separate  property  is  not  effectual  to 
pass  title  until  it  is  executed.  The  law  of  sales  rather  than 
of  partnership  applies  to  this.  While  the  division  is  in- 
choate or  conditions  unperformed,  the  property  continues 
joint,  although  divided  into  parts. 

Thus  after  a  mere  dissolution  and  retirement  of  a  partner,  with- 
out an  assignment  of  his  interest  to  the  continuing  partner,  the 
property  will  be  treated  in  bankruptcy  as  still  joint  estate,'  though 
accompanied  by  a  request  to  pay  to  one  partner.*  Contra  where 
the  notice  announces  that  the  retired  partner  has  sold  his  interest.* 
And  in  the  case  of  real  estate,  mere  agreement,  not  sealed  or  re- 
corded, does  not  convert  it  into  separate  property,  but  the  title  must 
be  divested."*  Actual  separation  into  parcels,  assigning  one  parcel 
to  each,  terminates  the  joint  ownership,  so  that  each  can  sue  the 
other  for  possession.* 

So,  where  a  division  is  to  be  accompanied  by  giving  security,  the 
mere  separation  and  taking  possession  does  not  divide  or  vest  the 
title  until  the  agreement  is  executed.'  But  if  the  seller  allow  the 
buyer  to  continue  to  transact  business,  and  dispose  of  the  assets  as 
his  own,  without  giving  the  indemnity,  he  cannot  recall  the  prop- 
erty.'' So  if  one  partner  on  dissolution  takes  out  what  he  deems 
to  be  his  share,  but  the  rest  is  afterwards  lost,  he  must  account  to 
the  other  partners  for  the  part  withdrawn.* 

If  land  is  conveyed  to  one  of  three  partners,  by  a  debtor  of  the 

the  partners  as  to  parts  of  the  prop-  the  business  (croppers)  is  to  divide 

erty,  if  the  state  of  the  accounts ren-  the  crop  into  parts,  and  give  each 

der  this  advisable,  and  one  of  the  possession   of  part  as  his    separate 

partners  is  resisting  it.    Buckingham  crop,  without  intention  to  terminate 

V.  Ludlum,  29  N.  J.  Eq.  345,  360.  joint  ownership,  for  then  the  posses- 

^  Ex  parte  Oooper,  1  M.  D.  &  DeG.  sion  of  one  is  the  possession  of  all. 

358.  Usry  v.  Rainwater,  40  Ga.  328. 

^Ex  parte  Sprague,  4  DeG.  M.  &  6  Fitzgerald  v.  Cross,  20  N.  J.   Eq. 

J.  866.  90;    Ex  parte  Wheeler,    Buck,    25; 

3  Armstrong  v.  Fahnestock,  19  Md.  Ex  parte  Wood.  10  Ch,  D.  554. 

58.  'Tracy  v.  Walker,    1   Flip.   41;    3 

«  Jones  V.  Neale,  2  Patt.  &  H.  (Va.)  West  Law  Month.  574. 

339.  8  Allison  v.   Davidson,  2  Dev.   (N. 

5  Hunt  V.    Morris,    44    Miss.   314;  Ca.)  Eq.  79.     And  see  Solomon  v. 

Koningsburg   v.    Launitz,   1    E.    D.  Solomon,  2  Ga.  18. 
Smith,  215.     Contra  if  the  usage  of 

659 


§  54SI.  CONDUCT  OF  THE  BUSINESS. 

firm,  in  payment  of  a  debt,  and  the  grantee  conveys  part  tq  one  of 
the  other  partners  as  his  share,  the  whole  is  converted  into  separate 
property,  not  only  the  part  conveyed,  but  the  part  held  by  him  for 
himself  and  the  third  partner,  for  if  the  share  of  one  ceased  to  be 
partnership  property  the  rest  did  also.' 

§  54*2.  To  defeat  the  priority  of  joint  creditors  the  con- 
summation of  an  executory  contract  to  sell  a  share  must  be 
clearly  proved. 

Thus,  where  G.  &  A.,  partners,  indebted  to  K.,  agreed  to  con- 
tinue business  until  January  1st,  and  A.  should  then  take  the 
assets  and  pay  the  debts,  but  A.  died  before  that  date,  appointing 
G.  &  M.  his  executors,  G.  continued  business  and  paid  A,  in  full, 
but  finding  A.'s  estate  insolvent  brought  suit  against  K.  for  the 
return  of  the  payment  over  a  pro  rata  dividend,  it  -was  held  that 
the  transfer  to  defeat  priorities  of  creditors  must  be  clearly  proved, 
and  assets  in  the  hands  of  G.  would  be  deemed  to  be  held  by  him 
as  surviving  partner  and  not  as  executor.  Hence,  that  his  pay- 
ment to  K.  was  as  surviving  partner,  and  as  in  that  capacity  he 
need  not  pay  pro  rata,  the  payment  cannot  be  got  back." 

An  appropriation  ma}'  be  revoked  if  not  fully  executed.  Thus, 
a  consent  that  a  partner  may  apply  a  check  to  his  individual  debt 
is  revocable  before  such  application  by  notice.' 

But  the  transfer  is  none  the  less  final  because  accompa- 
nied by  a  stipulation  that  deficiencies  or  excess  in  the  final 
settlement  of  the  interest  of  such  partner  shall  be  equalized 
by  his  paying  or  receiving,  or  even  by  his  restoration  of  part 
of  the  property,  without  specifying  any  particular  part.* 

1  Smith  V.  Ramsey,  G  III.  373.     If  3  National  Bank  v.  Mapcs,  85  111.  07. 

the   title  to  land  is  in  one  partner,  *  Mafllyn  v.  Hathaway,  106   Mass. 

and  on  his  death   the  other  partner  414;  Sharpe  v.  Johnston,  59  Mo.  557; 

presents  a  claim  against  the  estate  Miuchison  v.   Warren,   50  Tex.    27. 

for  his  advances  in  its  purchase,  he  And  see  Beck  with  v.  Manton,  13  R. 

may  witlidraw  the  claim  and  is  not  I.  442,  where  two  partners  holding 

estopped  thereby,  if  such  presenta-  the  legal  title  to  land   give   to   the 

tion  and  abandonment  of  the  land  as  third  a  contract  to  convey  a  tract  as 

partnersliip  property,  and  an  assent  his  estimated   share  of   tbe   profits, 

to  its  being  regarded  as  individual,  and  he  gives  in  return  a  receipt  for  a 

"Way  V.  Stebbins,  47  Mich.  296.  sum  of  money  to  bear  seven  per  cent. 

^Kreisu.  Gorton,  23  Oh.  St.  468.  The  receipt  has  become  joint  prop- 

560 


CONVERSION  OF  JOINT  INTO  SEPARATE  PROPERTY.     §643. 

§  543.  Glioses  in  action. —  Glioses  in  action  may  be  di- 
vided by  any  assignment  that  would  be  sufficient  to  trans- 
fer them  from  one  individual  to  another  as  by  transfer  to 
each  other. ^  Thus  the  firm  may  indorse  a  note  payable  to 
it  to  one  partner;  ^  or,  if  a  single  claim,  by  release  of  in- 
terest by  one  to  the  other,  or  indorsement  by  one  joint 
payee  to  the  other;'  or  by  procuring  the  debtor  to  make  a 
not'e  or  other  promise  to  each  partner  for  his  proportion  of 
the  debt.* 

So  where  a  person  who  has  collected  funds  for  two  part- 
ners pays  one  of  them  his  share,  the  balance  may  be  re- 
garded as  belonging  to  the  other,  and  his  separate  creditors 
can  attach  it  if  there  do  not  appear  to  be  any  partnership 
creditors.^  Or  by  one  partner  makmg  his  note  to  the  other. 
Such  notes  form  no  part  of  the  firm's  assets.* 

So  division  may  be  inferred,  as  where  a  firm  of  attorneys  received 
a  claim  for  collection,  and,  after  dissolving,  one  does  all  the  work 
of  collecting,  the  jury  may,  in  a  suit  by  him  in  his  own  name,  find 
that  it  was  awarded  to  him  by  the  terms  of  dissolution.'' 

Where  the  firm's  bank  account  was  kept  in  the  name  of  one 
partner  and  mixed  with  his  private  funds  at  the  wish  of  the  other 
partners,  and  they  were  consulted  as  to  the  propriety  of  leaving 
the  funds  in  the  bank  after  its  paper  had  begun  to  depreciate,  loss 

erty  in  place  of  the  land,  and  a  con-       3  Sneed  v.  Mitchell,  1   Hay w.  (N. 

veyance  can  be  required  independent    Ca.)  289. 

of  the  state  of  accounts.  *  Morse  v.  Green,  13  N.  H.   33   (38 

1  Lawrence  v.  Vilas,  20  Wis.  381;  Am.  Dec.  471);  Marlin  v.  Kirkey,  23 
McLanahan  v.  EUery,  3  Mason,  267;  Ga.  164;  McDougald  v.  Banks,  13 
Rowaud  V.  Eraser,  1  Rich.  (S.  Ca.)  L. .  Ga.  451 ;  Shafer's  Appeal,  106  Pa.  St. 
325;   Jackman   v.  Partridge,  21   Vt.    49. 

558;  Bf^lknap  v.  Cram,  11   Oh.  411 ;  5  Robinson  v.  Moriarity,  2  G.  Gr. 

Mechanics'  Bank  v.  Hildreth,  9  Cush.  (Iowa)  497;  Harlan  v.  Moriarty,  id. 

356.                                                          .  486. 

2  Merrill  v.  Guthrie,  1  Pin.  (Wis.)  CLamkin  v.  Phillips,  9  Porter 
435;  Stevenson  v.  Woodhull,  19  Fed.  (Ala.),  98;  Waterman  v.  Hunt,  2  R. 
Rep.  575;  Baring  v.  Lyman,  1  Story,  L  298,  303;  Belknap  v.  Cram,  11  Oh. 
C.  C.  396;  Smith  v.  Lusher,  5  Cow.  411;  Glynn  v.  Phetteplace,  26  Mich. 
688;    Manegold  v.    Dulau,    30  Wis.  383. 

541 ;  and  see  Kirby  v.  Coggswell,    1       "  Anderson    v.   Tarpley,    6  Sm.  & 
Cai.  505.  Mar.  507. 

Vol.  I  — 36  561 


§  541.  CONDUCT  OF  THE  BUSINESS. 

by  failure  of  the  bank  cannot  be  thrown  upon  such  partner.     No 
appropriation  can  be  inferred.* 

Where  Myers  furnished  the  money  to  buy  a  drove  of  cattle  on 
joint  account,  and,  the  objects  of  the  partnership  having  been  com- 
pleted, each  of  the  other  partners  handed  a  certain  amount  .of 
money  to  one  of  their  number  for  Myers,  this  made  it  his  individ- 
ual property,  and  the  depositary  who  had  allowed  another  partner 
to  use  part  of  the  fund  was  held  liable  to  Myers  at  law  therefor.' 

§  544.  Taking  funds  witliout  consent  of  all. —  The  con- 
sent or  concurrence  of  all  the  partners  is  necessary  to  accom- 
plish a  severance  of  the  joint  title  and  convert  an  asset  into 
individual  property;  one  partner  cannot  appropriate  the 
property  to  himself  or  to  another  partner,  nor  can  a  major- 
ity do  so.  The  power  of  each  partner  to  sell  and  give  a 
good  title  to  a  bona  fide  buyer  is  not  a  power  to  appropriate, 
or  permit  a  copartner  to  appropriate,  an  asset  without  the 
consent  of  all,  and  partnership  property  thus  improperly 
taken  aw*ay,  or  funds  invested,  can  be  followed  and  sub- 
jected as  held  on  a  resulting  trust,  unless  it  comes  into  the 
hands  of  a  bona  fide  buyer.'* 

Hence  a  partner  cannot  make  a  note  to  himself,  and  charge  the 
firm  with  it.'*  Or,  if  he  confess  judgment  against  the  firm  for  his 
separate  debt,  the  creditors  can  attack  the  judgment  collaterally, 
on  distribution  of  the  fund.^    And  if  a  partner  who  has  procured  a 

1  Campbell  v.  Stewart,  34  111.  151.  Dev.    (N.   Ca.)  Eq.  481;  Clement  v. 

2  Myers  y.  Winn,  16  111.  135.  Foster,  3  Ired.   Eq.    213;    Eason    v. 

3  West  V.  Skip,  1  Ves.  Sr.  239,  242;  Cherry,  6  Jones,  Eq.  261 ;  Chipley  v. 
iJcc  parfe  Ruffin,  6  Ves.  119;  Piiilips  Keaton,  65  N.  Ca.  534;  Thomas  v. 
V.  Crammond,  2  Wash.  C.  C.  441.;  Lines.  83  N.  Ca.  191 ; Moore  u  Knott, 
Crosswellv.  Lehman,  54  Ala.  363(25  12  Oreg.  260;  Horback  v.  Huey,  4 
Am.  Dec.  684);  King  u  Hamilton,  16  Watts,  455;  McNaughton's  Appeal, 
111.  190;  Barkley  V.  Tapp,  87  lud.  25;  101  Pa.  St.  550;  Hunt  v.  Benson,  2 
Cooper  V.  Frederick,  4  G.  Gr.  (Iowa),  Humph.  (Tenn.)  459;  Piano  Co.  v. 
403;  Say  lor  v.  Mockbie,  9  Iowa,  209;  Bernard,  2  Lea,  358,  3G4;  Wood  v. 
Wilson  V.  Davis,  1  Montana,  183;  Shepherd,  2  Patt.  &  H.  (Va.)  442; 
Croughton  v.  Forrest,  17  Mo.  131 ;  Bird  v.  Fake,  1  Pin.  (Wis.)  290. 
Uhler  V.  Semple,  20  N.  J.  Eq.  288;  <  Brown  v.  Haynes,  6  Jones,  Eq. 
Shaler  v.  Trowbridge,  28  id.  595 ;  Par-  (N.  Ca.)  49.     And  see  §  347. 

tridge  v.  Wells,  30   id.  176 ;  Bun  v.       5  McNaughton's  Appeal,  101  Pa.  St. 
Morris,  1  Caines,  54 ;  Rhodes  v.  Wil-    550. 
liams,  12  Nev.  20-  Bufordr.  Neely,  2 

562 


CONVERSION  OF  JOINT  INTO  SEPARATE  PROPERTY.     §  545. 

loan  for  a  firm,  on  the  security  of  liis  individual  property,  receives 
partnersliip  assets  assigned  to  him  to  be  appropriated  to  pay  the 
lender,  he  cannot  use  them  for  any  other  purpose,  nor  can  a  person 
to  whom  he  assigns  them  to  pay  an  individual  debt.* 

Charging  property  to  one  partner  upon  the  books  is  evidence  of 
its  conversion  to  his  separate  estate,"  or  depositing  it  to  his  credit 
in  bank.^  So  if  property  exempt  from  execution,  as  the  tools  of 
the  partners,  are  delivered  to  them  b}''  the  firiTi's  assignee  for  bene- 
fit of  creditors,  the  transfer  does  not  revive  the  partnership  in 
them.*  And  where  ships  owned  in  partnership  by  persons  belong- 
ing to  different  countries  are  captured  by  the  cruisers  of  a  country 
at  war  with  that  of  one  of  the  partners,  and  not  of  the  others,  a 
sum  paid  as  indemnity  to  the  two  latter,  excluding  the  former,  is 
the  separate  pi'operty  of  the  recipients.* 

§  545.  Following  the  funds. —  Hence,  also,  if  one  partner, 
in  fraud  of  his  copartners'  rights,  abstract  funds  and  invest 
them  in  property  in  his  own  name,  or  in  that  of  his  wife,  or 
of  a  third  person,  or  use  them  to  payoff  incumbrances  upon 
his  own  property  or  that  of  his  wife,  the  defrauded  partners 
can  follow  the  funds.® 

But  it  seems  that  there  must  be  some  element  of  fraud  in 

1  Owens  V.  Miller,  29  Md.  144.  Price,  20  id.  117;  Bergeron  v.  Rich- 

2  See  §284.  ardott,  55  id.  129;  Prentiss  v.  Bren- 
3 Rhoton's  Succession,  34  La.  Ann.    nan,   1  Grant's  Ch.  (Up.   Can.)  484. 

893.  As  to  accountability  for  profits  made 
<  Wells  V.  Ellis  (Cal.),  9  Pac.  Rep.  by  speculating  or  trading  with  funds 
80.  of  the  partnership,  see  §§  790-801.  lu 
8  Campbell  v.  Mullett,  2  Swanst.  Howell  v.  Howell,  15  Wis.  60,  this 
551.  The  doctrine  of  good  faith  was  held  not  to  be  a  trust,  and  the 
would  seem  to  require  a  different  statute  of  limitations  began  to  run  as 
rule ;  but  in  this  case  the  court  per-  upon  an  adverse  possession.  In  Rus- 
haps  could  not  grant  rights  to  an  sell  v.  Miller,  26  Mich.  1,  the  action 
alien  enemy,  not  because  the  prop-  was  brought  to  obtain  the  benefit  of 
erty  was  not  joint,  but  because  of  land  bought  in  the  name  of  the  de- 
his  domicile.  fendant,  on  an  allegation  of  an  ex- 
«Kelley  v.  Greenleaff  3  Story,  93;  press  agreement  to  buy  for  the  firm. 
Shinn  v.  Macpherson,  58  Cal.  596;  But  it  was  held  that  this  would  not 
Kayser  v.  Maughan.  8  Col.  339;  Ren-  sustain  a  recovery  on  the  theory  of 
frew  V.  Pearce,  68  111.  125 ;  Crough-  a  resulting  trust  arising  from  a  mis- 
ton  V.  Forrest,  17  Mo.  131 ;  Holdrege  use  of  partnership  funds  by  investing 
V.  Gwynne,  18  N.  J.  Eq.  26;  Howell  them  in  land  in  defendant's  name. 
V.  Howell,  15  Wis.  60  [551 ;  MiUer  v. 

663 


§  547.  CONDUCT  OF  THE  BUSINESS. 

the  appropriation;  thus  more  overdrafts  give  no  right  to  pro- 
ceed against  the  separate  estate,^ 

Thus  where  a  partner  drew  out  money  and  expended  it  on  his 
vrife's  land,  there  was  held  to  he  no  lien  for  it  unless  the  taking  was 
surreptitious  or  in  bad  fiiith."  So  where  a  partner  paid  taxes  on  his 
own  property  with  partnership  funds. ^  And  where  a  partner  pays 
a  private  debt  with  partnership  funds,  if  the  transaction  is  small, 
and  there  is  no  reasonable  apprehension  of  injury  to  others,  it  may 
be  sustained  as  an»  exercise  of  a  right  to  draw  funds  for  the  part- 
ner's support.*  And  where  a  salaried  partner  whose  salary  was  in 
arrear  drew  money,  charged  it  to  himself  on  the  books,  and  invested 
it  in  stock,  the  creditors  cannot,  upon  the  firm  becoming  insolvent, 
claim  the  stock  to  be  partnership  property.^ 

§  546.  implied  assent. —  The  assent  of  the  copartners 

may,  however,  be  implied,  as  by  a  habit  of  all  the  partners 
of  applying  assets  to  separate  use;  thus  where  a  partner 
bought  a  slave,  paying  a  small  part  of  the  price  out  of  part- 
nership funds,  the  partnership  has  no  lien  upon  the  slave  for 
the  amount,® 

So  where  some  of  the  partners  without  objection  from  the  rest 
largelj^  overdrew  their  accounts  and  built  themselves  fine  residences, 
all  supposing  the  partnership  to  be  prosperous.  The  firm  failed; 
one  of  the  partners,  to  whom  a  balance  was  due,  had  been  engaged 
in  selling  for  the  firm,  and  had  less  opportunity  than  the  rest  to 
know  its  condition  or  to  know  of  this  use  of  its  funds,  but  the 
books  were  always  open  to  him,  and  the  entries  of  these  transac- 
tions were  upon  them,  and  it  was  held  in  a  suit  for  an  accounting 
that  he  could  not  assert  a  lien  upon  these  houses.'' 

§547*  Delivery  or  change  of  possession. —  As  between 
partners,  as  the  chattels  are  already  in  the  possession  of  each 
as  well  as  of  all,  delivery  does  not  so  much  consist  of  actual 
tradition,  as  in  the  surrender  and  relinquishment  of  the 

1  See  §  839.  *  Williams  v.  Barnett,  10  Kan.  455, 

2  Sharp  V.  Hibbins,   42  N.  J.    Eq.    462;  Crozieru  Shauts,  43  Vt.  478. 
543.  SMaybin  v.   Moorman,   21   S.   Ca. 

'United     States     v.    Duncan,    4   846. 
McLean,  607,  but  it  was  the  creditors       «  Cabaniss  v.  Clark,  31  Miss.  423. 
and  not  the  partners  who  complained       ">  McCormick  v,  McCormick,  7  Neb. 
here.  440, 

564 


CONVERSION  OF  JOINT  INTO  SEPARATE  PROPERTY.     §  547. 

seller's  possession,  and  is  rather  a  matter  of  form  than  a  sub- 
stantial part  of  the  conveyance;  nevertheless  it  is  necessary 
when  required  under  the  statute  of  frauds  as  applied  to  the 
law  of  sales;  but  of  chattels  scattered  in  different  places  a 
symbolic  delivery  is  enough,  or  a  delivery  of  part  for  all.^ 
Yet  such  conversion  into  separate  property  by  division,  or 
by  sale  from  one  partner  to  another  without  change  of  pos- 
session may  be  valid  inter  se  and  as  to  individual  creditors; 
it  has  nevertheless  been  held  void  as  to  partnership  cred- 
itors without  notice  thereof  for  want  of  change  of  possession.^ 
And  conversely  where  a  person  buyg  an  interest  in  a  firm, 
no  formal  delivery  is  necessary  inter  se.' 

In  Birks  v.  French,  21  Kan.  238,  B.,  of  L.,  W.  &  B.,  bona  fide 
bought  a  herd  of  cattle  then  in  pasture  from  his  firm,  and  after- 
wards L.,  in  the  name  of  the  firm,  sold  the  same  herd  to  F.,  a  former 
dealer  with  the  firm,  who  had  no  notice  of  the  change  of  title.  F.'s 
title  was  held  better  than  B.'s.  The  reason  given  was  that  the  sale 
to  B.  was  a  dissolution  of  partnership  as  to  this  herd,  and  not  bind- 
ing on  a  prior  dealer  until  notice. 

Where  the  firm  shipped  articles  to  a  partner  who  had  purchased 
them  from  it,  and  on  the  same  day  both  went  into  insolvency,  the 
actual  appropriation  is  sufficient  to  constitute  them  part  of  his 
separate  estate  while  in  transit.^ 

Where  one  partner  goes  away,  and  the  other  takes  possession  and 
pursues  and  buys  out  the  former,  the  title  of  the  buyer  is  complete 
without  further  delivery  under  the  statute  of  frauds  as  against  an 
attachment.'' 

The  mere  fact  that  the  purchasing  partner  by  agreement  contin- 
ues business  in  the  same  name,  sign,  business  cards  and  same  form 
of  bank  account,  and  employing  the  outgoing  partner  as  clerk  at  a 
salary,  was  held  not  to  warrant  the  inference  that  the  property 

1  Shurtleff  u.  Willard,  19  Pick.  203.  Wagon  Co.  121  U.  S.  310,  because  a 

2  Page  V.  Carpenter,  10  N.  H.  77;  creditor  who  has  no  lien  cannot  ob- 
Criley  V.  "Vasel,  52  Mo.  445 ;  Newell  u.  ject  to  changes  of  ownership;  but 
Desmond,  63  Cal.  242;  Re  Tomes,  19  this  is  different  from  change  of  pos- 
Bankr.  Reg.  36 ;  Moline  Wagon  Co.  session.     See  §  105. 

V.  Rummell,  2  McCrary,  307;  13  Fed.  3  Ritchie  v.  Kinney,  46  Mo.  298. 

Rep.  658;  14  id.  155;  but  this  case  is  ^  Fisher  v.  Minot,  10  Gray,  260. 

reversed  as    Huiskamp    v.     Moline  sBoynton  v.  Page,  13  Wend.  425, 

565 


§  518.  CONDUCT  OF  THE  BUSINESS. 

was  still  that  of  the  outgoing  partner  transferred  in  fraud  of  cred- 
itors, and  is  not,  therefore,  subject  to  levy  by  a  subsequent  cred- 
itor.' 

Whore  L.,  of  L,  &  M.,  who  owned  lumber  in  partnership,  sold  out 
his  interest  to  D.,  and  the  lumber  was  marked  D.  &  M.,  and  M. 
thereupon  employed  L/s  as  his  agent  to  take  charge  of  his  interest, 
here  L.'s  continued  possession  does  not  make  his  sale  to  D.  void  as 
to  his  creditors,  for  D.  could  do  no  more;  he  could  not  exclude  M.'s 
agent  from  possession,* 

§  548.  sale  by  one    partner  to  a  tliird  person.— 

Where  a  partner  sells  or  assigns  his  share  to  a  third  person 
in  a  partnership,  change  of  possession  is  not  possible  and 
manual  delivery  is  not  essential  to  the  validity  of  the  con- 
veyance. The  ground  upon  which  this  is  based  in  some  of 
the  cases  below  is  not  the  true  one.  The  parties  are  not 
tenants  in  coinmon,  but  the  assignment  conveys  a  right  in 
the  nature  of  a  chose  in  action  not  capable  of  delivery,  and 
notice  of  the  assignment  to  the  holder  of  the  fund  or  to 
third  persons  is  all  that  is  essential,  and  even  that  as  be- 
tween the  assignor  and  the  assignee  is  not  necessary. 

In  Whigham's  Appeal,  63  Pa.  St.  19i,  H.,  T.  &  A.  were  partners 
in  a  portable  saw-mill,  A.  beiug  the  manager  and  in  possession. 
H.  sold  his  interest  to  W.  and  A.  recognized  W.'s  title,  but  there 
was  no  change  of  possession.  The  sale  was  held  valid  against 
creditors  of  H.  because  not  capable  of  further  delivery,  and  because 
the  possession  of  one  tenant  in  common  is  the  possession  of  all. 

In  Raiguel's  Appeal,  80  Pa.  St.  234,  2iT-8,  one  partner  assigned 
all  his  interest  in  a  dissolved  partnership  to  a  creditor  as  security. 
The  master  held  this  to  be  valid  against  the  execution  sale  of  his 
interest  by  another  creditor,  and  the  buyer,  ou  execution,  took 
nothing. 

In  Wallace's  Appeal,  lOi  Pa.  St.  559,  A.,  while  indebted  to  S. 
for  $9,500,  and  having  §3,000  capital  in  a  firm,  in  order  to  increase 
his  interest  in  the  business  borrowed  $14,500  of  W.,  and  to  secure 
it  gave  W.  a  written  transfer  of  all  his  interest  in  the  firm,  with  a 
clause  that  on  default  W.  could  take  possession.     S.  got  judgment 

iHamill  v.   Willett.  6  Bosw.  533;       ^Pieru  Duff,  63  Pa.  St.  59. 
Crilej  V.  Vasel,  53  Mo.  445. 

666 


CONVERSION  OF  JOINT  INTO  SEPARATE  PROPERTY.     §  548. 

against  A.  aud  A.'s  interesf,  was  sold  on  execution,  his  copartners 
buying  it  in  for  §10,000,  W.  notifying  all  at  the  sale  that  it  was 
pledged  to  him,  and  S.  was  paid  in  full  oui;  of  the  proceeds.  On 
bill  by  W.  for  an  accounting,  it  was  lield  that  possession  was  not 
necessary  to  the  pledgee's  title,  being  impossible,  and  this  is  an  ex- 
ception to  the  general  rule,  and  that  the  pledge  is  good  against 
every  one  but  buyers  without  notice;  that  W.'s  right  to  take  pos- 
session meant  a  right  to  call  for  an  account,  and  A.'s  copartners  as 
buyers  of  his  interest  only  acquired  any  surplus  in  it,  and  must 
pay  W.  his  claim  if  they  desire  to  hold  A.'s  share.' 

In  Collins'  Appeal,  107  Pa.  St.  590,  A.  borrowed  money  of  B.  for 
the  purpose  of  forming  a  limited  partnership,  aud  as  security 
pledged  all  his  interest  in  the  future  partnership.  The  partnership 
was  formed,  but  under  another  than  the  then  intended  name  and 
with  additional  parties,  and  at  its  expiration  and  winding  up  A.'s 
share  was  paid  to  his  executors.  It  was  held  that  a  pledge  could 
be  made  of  a  thing  not-  i)i  esse,  and  the  partnership  formed  being 
in  fact  the  one  intended,  the  pledge  is  good  against  general  credit- 
ors of  A.  aud  against  all  but  buyers  without  notice,  aud  even  against 
subsequent  partnership  creditors. 

The  original  draft  of  a  notice  of  dissolution  reading  as  follows: 
"  B.  having  disposed  of  his  interest  in  the  firm  of  A.  &  B.  to  A., 
the  firm  is  this  day  dissolved,"  etc.,  was  held  a  sufiicient  writing  to 
transfer  B.'s  interest  to  A.^ 

In  Whittle  v.  Skinner,  23  Vt.  531,  an  assignment  by  C,  a  part- 
ner, of  all  his  interest  in  the  firm,  or  in  the  unascertained  balance 
that  might  be  due  him  on  settlement,  as  security  for  an  individual 
debt,  but  with  the  assent  of  his  copartner,  was  held  to  be  void,  be- 
cause it  is  an  assignment  of  an  unliquidated  claim  or  a  virtual  sale 
of  suits,  which  is  void  for  maintenance,  and  also  because  an  assign- 
ment by  way  of  pledge  is  inoperative  without  delivery,  and  is 
therefore  a  mere  agreement  to  assign ;  and  hence  on  subsequent 
settlement,  a  balance  of  §50  in  the  hands  of  his  copartner  being 
due  C,  an  agreement  by  C.  that  it  should  remain  in  his  hands  and 
be  credited  on  a  note  of  C.  to  the  partner  is  not  interfered  with 
by  the  attempted  prior  assignment. 

iThis     case     had     a     variety     of    107  Pa.  St.  590;    and  lastly  as  Wal- 
branches,  viz.:    in  the   Orphans'  Ct.    lace's  Appeal,  lOi  id. 
as  Hulse's  Estate,  11  Weekly  Notes       ^  Armstrong  u.  Fahnestock,  19  Md. 
(Pa.),  499;   then  as  Collins'  Appeal,    58. 

567 


§  550.  CONDUCT  OF  THE  BUSINESS 

§  549.  An  offer  by  one  partner  to  sell  out  to  the  other  at  a  cer- 
tain sum,  the  oifer  to  continue  for  a  certain  time,  but  in  the  mean- 
time the  business  to  go  on,  new  debts  being  created  and  old  ones 
paid,  will  be  construed  as  an  offer  to  sell  the  interest  as  it  existed 
at  that  date,  and  an  acceptance  at  the  end  of  the  time  of  the  in- 
terest as  it  then  stood,  at  the  original  price,  is  no  acceptance.* 

Where  a  firm  had  valuable  contracts  for  furnishing  articles  to  be 
manufactured  under  its  patents,  and  one  partner  having  died,  his 
executor  sold  to  the  surviving  partner  the  decedent's  half  of  the 
stock,  fixtures,  etc.,  according  to  a  schedule,  but  no  reference  was 
made  to  the  contracts,  and  afterwards  sold  to  him  all  the  decedent's 
interest  in  the  patents  and  the  lease  of  the  place  of  business,  the 
survivor  assuming  the  payment  of  all  salaries  due  since  the  death, 
the  contracts  being  of  no  value  apart  from  the  patents,  the  infer- 
ence will  be  drawn  that  the  executor  intended  to  reserve  no  benefit 
in  the  fulfillment  of  the  outstanding  contracts  and  that  the  sur- 
vivor's continuance  of  business  was  on  his  own  sole  account.* 

An  assignment  by  one  partner  of  all  his  interest  in  a  contract 
of  partnership  "by  which  he  is  entitled  to  one-third  the  net 
profits,"  was  held  not  to  transfer  his  right  to  a  salary  and  expenses 
in  managing  the  business.^  A  conveyance  of  half  a  partner's  in- 
terest in  a  gold  company,  with  a  subsequent  clause  that  the  buyer 
was  not  to  be  a  partner  but  to  have  only  half  the  seller's  interest 
in  the  metals  obtained,  is  modified  by  the  subsequent  clause  and 
passes  no  interest  in  the  outfit.* 

RETIRING  partner's   EQUITABLE   LIEN. 

§  550.  Retiring  partner  has  no  lien.— The  right  of  a 
partner  to  have  the  assets  applied  to  pay  the  debts  ceases 
when  he  parts  with  his  interest  in  the  assets,  as  where  part- 
ners convert  their  joint  interests  into  separate  interests. 

1  Eggleston  v.  Wagner,    46  Mich,  for  five  years,  but  at  the  end  of  a 

610.  year  dissolved  and  sold  out  to  the 

2Collender    v.   Phelan,    79    N.  Y.  plaintiff  all  their  rights  secured  by 

3G6.  the  indenture,  this  conveys  not  only 

3  Stewart  V.  Stebbins,  30  Miss.   66.  the    original   contributions    for  the 

<  Phillips    V.    Jones,    20     Mo.    67.  rest  of  the  five  years,  but  also  all 

Where  partners  who,  by  indenture,  subsequent    purchases    made    with 

had  specified  how  much  each  should  partnership  funds,  Caswell  v.  How- 

conlribute  and   agreed  to  continue  ard,  16  Pick.  563. 

5G8 


CONVERSION  OF  JOINT  INTO  SEPARATE  PROPERTY,     §  550. 

Hence,  where  a  partner  retires  from  the  firm,  seUing  or  as- 
signing his  interest  to  the  continuing  or  remaining  partners, 
he  loses  his  equitable  right  and  can  no  longer  apply  as  part- 
ner for  an  accounting  and  receiver,  but  becomes  a  mere  un- 
secured creditor  for  whatever  may  be  or  become  due  him, 
and,  like  any  other  creditor,  has  only  the  personal  security 
of  his  former  copartners  to  look  to.^ 

Some  cases,  however,  give  the  retiring  partner,  as  a  surety,  rights 
and  powers  to  compel  application  of  assets  to  debts,  which  are 
nearly  equivalent  to  the  lien  of  a  partner.^ 

Where  one  partner  sold  his  entire  interest  to  a  third  person;  the 
other  partner  then  used  partnership  funds  to  buy  land  in  liis  own 
name,  the  retired  partner  has  no  lien  on  the  lands.^  A  partner 
who  conveys  his  interest  in  partnership  land  to  his  copartner  is 
entitled  to  a  vendor's  lien  for  the  price,  provided  there  are  no  joint 
creditors;^  but  any  such  lien  or  a  mortgage  to  secure  the  purchase 
money  would  be  subject  to  the  claims  of  joint  creditors/  But  the 
mortgage  in  the  hands  of  an  assignee  for  value  was  held  good 
against  the  attachments  of  joint  creditors  in  Scudder  v.  Delashmut, 
7  lo^^a,  39. 

In  Seaman  v.  Huffaker,  21  Kan.  254,  M.,  of  H.  &  M.,  partners, 
owning  real  and  personal  property,  sold  in  writing  all  his  interest 
in  the  property  to  his  partner,  H.,  in  consideration  of  H.'s  promise 
to  pay  him  §1,500  and  to  pay  the  debts.  The  real  estate  remained 
in  the  name  of  both  and  was  mortgaged  by  H.  to  secure  a  partner- 
ship creditor.  The  creditor,  having  foreclosed,  was  held  entitled 
to  a  decree  for  the  title  against  both  partners,  for  the  entire  equi- 
table title  being  in  H.,  he  could  mortgage  it,  and  the  claim  for  a 
firm  debt  is  prior  to  M's  claim  for  $1,500,  which  is  an  individual 
debt. 

In  Low  V.  Allen,  41  Me.  248,  L.  sold  out  to  his  partner  A.  all  his 
interest  in  the  firm  of  L.  &  A.,  A.  giving  him  in  payment  notes 

iLiugen  v.  Simpson,  1  Sim.  &  Stu.  here  because  not  elsewhere  specific- 

600;  Ex  jparte  Ruffin,   6  Ves.    119;  ally  noticed  under  this  head. 

Jones  V.  Fletcher,  42  Ark.  423 ;  Mar-  2  See  g  534. 

lin  V.  Kirksey,  23  Ga.  164;  Wilson  v.  SBarkley  v.  Tapp,  87  Ind.  25. 

Soper,  13  B.  Mon.  411  (56  Am.  Dec.  ^Reese  v.  Kinkead,  18  Nev.  126. 

573).     And   see  §   189,  and  cases  in  sgeaman  v.  Hufifaker,  21  Kan,  254; 

the  succeeding  notes  of  this  topic  Low  i".  Allen,  41  Me.  248;  Savage  u. 

passim,    the   foregoing  being    cited  Carter,  9  Dana,  408. 

569 


g  551. 


CONDUCT  OF  THE  BUSINESS. 


and  a  mortgage  upon  the  partnership  property  "to  secure  him  for 
his  liability  on  the  debts  and  for  the  ultimate  payment  of  the 
notes."  The  property  being  sold  by  consent  and  the  proceeds 
coming  into  L.'s  hands,  it  was  held  that  he  could  appropriate  it  to 
partnership  liabilities  before  app]3nng  it  to  the  notes. 

§  551.  Coutiuuing  partners  assuming  detots. —  The  fact 
that  the  continuing  partner,  or  if  a  third  person,  who  buys  the 
interest  and  becomes  a  partner,  assumes  the  debts  and  agrees 
with  the  retiring  partner  to  indemnify  or  save  him  harmless 
or  to  pay  the  debts,  does  not  preserve  the  lien.  The  contract 
is  a  personal  obligation  only,  and  is  equivalent  merely  to 
deferring  the  payment  of  the  consideration.  Hence  the 
property  is  converted  into  separate  property  and  the  buyers 
can  deal  with  it  as  they  please,  for  the  retiring  partner  is  a 
mere  creditor,  and  not  a  cestui  que  trust} 


1  Ex  parte  Ruffin,  6  Ves.  119,  126 ; 
Ex  x>arte^N\\\mms,  11  id.  3;  Crane 
V.  IMorrisou,  17  Bankr.  Reg.  893; 
Reese  v.  Bradford,  13  Ala.  837,  847; 
Griffin  v.  Ormaii,  9  Fla.  22;  West  v. 
Chasten,  12  Fla.  315;  Ladd  v.  Gris- 
wold,  9  111.  25  (46  Am.  Dec.  443j; 
Hapgood  V.  Cornwell,  48  id.  64; 
Goembelu  Arnett,  100  id.  34;  Will- 
iamson V.  Adams,  16  111.  App.  564; 
Trentman  v.  Swai'tzell,  85  Ind.  443; 
Maquoketa,  City  of,  v.  Willey,  35 
Iowa,  323 ;  Griffith  v.  Buck,  13  Md. 
102;  Armstrong  v.  Fahnestock,  19 
id.  58;  Robb  v.  Mudge,  14  Gray,  534; 
Howe  V.  Lawrence,  9  Cush.  553,  558 
(57  Am.  Dec.  68);  Andrews  v.  Maun, 
31  Miss.  322;  Fulton  v.  Hughes,  63 
id.  61;  Vosper  v.  Kramer,  31  N.  J. 
Eq.  420 ;  Dayton  v.  Wilkes,  5  Bosw. 
655;  Cory  v.  Long,  2  Sweeny  (N.  Y.), 
491;  Weber  v.  Defor,  8  How.  Pr. 
502;  Parks  v.  Comstock,  59  Barb.  16; 
Dimou  V.  Hazard,  32  N.  Y.  65; 
Emerson  v.  Parsons,  46  id.  500  (aff'g 
2  Sweeny,  447) ;  Stanton  v.  Westover, 
N.  Y.  (1886)4  N.  E.  Rep.  529;  Latham 
V.   Skinner,    Phil.    (N.  Ca.)   Eq.  292 ; 

5 


Rankin  v.  Jones,  2  Jones  (N.  Ca.), 
Eq.  109;  Allen  v.  Grissom,  90  N.  Ca. 
90;  Miller  v.  Estill,  5  Oh.  St.  508, 
517-18;  Baker's  Appeal,  21  Pa.  St. 
76;  Clarke's  Appeal,  107  id.  436; 
Croone  v.  Bivens,  2  Head,  339;  Smith 
V.  Edwards,  7  Humph.  106;  Hollis  v. 
Staley,  3  Baxter,  167;  White  v. 
Parish,  20  Tex.  688 ;  and  see  Wagner 
V.  Wagner,  50  Cal.  76.  Contra,  De- 
veau  V.  Fowler,  2  Paige,  400;  Olson 
V.  Morrison,  29  Mich.  395.  It  wdll 
be  remembei'ed  that  if  a  continuing 
partner  agrees  to  pay  the  debts  and 
not  merely  to  indemnify,  the  retiring 
partner  has  a  right  of  action  against 
him  upon  non-payment,  without 
himself  having  first  paid  anything 
(g  036).  This,  however,  is  an  action 
at  law  for  money  damages  and  not 
an  equitable  right  to  have  the  spe- 
cific assets  applied  to  partnership 
debts  to  the  exclusion  of  separate 
debts,  which  is  what  we  are  here 
considering,  and  which  carries  with 
it  a  right  to  injunction  and  receiver, 
and  which  a  court  will  enforce  in 
favor  of  the  firm  creditors  in  case 
70 


CONVERSION  OF  JOINT  INTO  SEPARATE  PROPERTY,     g  551. 

Thus,  in  Griffitli  v.  Buck,  13  Md.  102,  one  partner  sold  out  to  the 
other,  who  assumed  the  debts  and  agreed  that  the  hitter  should  be 
released  therefrom.  The  continuing  partner  afterwards  sold  out 
the  whole  concern  to  G.,  leaving  the  debts  unpaid.  The  creditors 
claimed  that  the  retired  partner  had  a  lien  to  have  the  debts  paid, 
which  lien  the  creditors  could  use  to  set  aside  the  sale  to  G.  But 
it  was  held  that  the  partnership  effects  on  voluntary  dissolution 
could  be  transferred  bona  fide  to  one  or  more  partners  or  to  a 
stranger,  and  though  the  consideration  be  that  the  buyer  shall  pay 
the  debts  this  will  not  aid  the  creditors. 

In  Lingen  v.  Simpson'  the  partners  dissolved  and  divided  up  the 
tangible  property  of  the  firm  between  them,  agreeing  that  the 
debts  owing  to  the  firm  should  be  appropriated  to  pay  those  owing 
by  it.  This  fund  proved  deficient,  but  it  was  held  that  neither 
partner  had  a  lien  upon  the  share  of  property  alloted  to  the  other 
for  the  deficiency. 

In  Langmead's  Trusts,"  one  partner  retired,  assigning  all  his  in- 
terest in  the  firm  to  the  other,  subject  to  debts,  the  other  agreeing 
to  pay  debts  and  indemnify  him.  The  continuing  partner  after- 
wards assigned  a  policy  of  insurance  which  had  been  an  asset  of 
the  firm  to  a  mortgagee  Avith  notice  of  the  terms  of  dissolution. 
One  judge  held  that  no  lien  was  intended  to  be  reserved;  the  rest 
held  that,  whether  intended  or  not,  the  mortgagee  need  not  see  to 
the  application  of  the  mortgage  money. 

In  Giddings  v.  Palmer,^  partners  on  dissolution  divided  the 
assets  between  them  and  each  assumed  specified  liabilities.  B., 
one  of  the  partners,  who  had  agreed  to  pay  a  partnership  note  due 

the  assets  are  being  judicially  dis-  his  vendee,  who  had  also  bought  out 
tributed.  The  above  two  cases  of  the  other  partnei-.  It  was  also 
Deveau  v.  Fowler  and  Olson  v.  JMor-  held  there  that  the  defendant  could 
rison  were  covenants  to  pay  the  not  insist  that  the  creditors  should 
debts,  and  the  courts  held  that  such  first  obtain  judgment  against  the 
a  covenant  recognizes  or  preserves  partners,  for  he  had  no  right  to  re- 
the  lien ;  in  the  former  case  the  re-  quire  those  to  be  inirsued  whom  he 
tiring  partner  was  allowed  an  in-  had  undertaken  to  relieve.  See,  also, 
junction  and  receiver  on  charges  of   g  929. 

insolvency  and  using  the  assets  to       i  1  Sim.  &Stu.  600;S.  p.  Whitworth 
pay  private  debts,  and  in  the  latter   v.  Benbow,  56  Ind.  194;  and  see  Rob- 
the  ?firm   creditors  and  the  retiring    ertson  ?;.  Baker,  11  Fla.  193. 
partner  jointly  obtained  injunction       27  De  G.  M.  &G.  353. 
and  other  relief   in  equity  against       3 107  Mass.  269. 

571 


§  552.  CONDUCT  OF  THE  BUSINESS. 

to  his  father,  instead  of  applying  the  assets  allotted  to  him  to  its 
payment,  devoted  them  to  the  dischai-ge  of  individual  dehts  which 
he  owed  his  father.  The  father,  who,  at  the  time,  knew  of  the 
agreement  and  its  violation,  brought  an  action  on  the  note  against 
the  other  partners.  It  was  held  that  each  partner  received  his  al- 
lotted assets  absolutely,  and  not  subject  to  any  trust,  and  each 
had  released  his  lien  to  have  them  applied  to  debts  and  relied  upon 
the  other's  promise,  and  the  father  could  maintain  the  action. 

§  552.  Retention  of  lien  by  the  contract. —  There  seems, 
however,  no  reason  why  the  retiring  partner  may  not  re- 
tain a  lien  h}''  agreement,  and  if  the  terms  of  sale  so  ex- 
press, or  an  intention  to  that  effect  appears,  the  lien  will  be 
preserved; '  and  if  the  purchasing  partner  agrees  to  pay  the 
debts  with  or  out  of  the  assets,  or  to  apply  the  assets  or 
the  profits  to  the  debts,  a  trust  fund  is  created,  or  rather 
the  retiring  party  has  preserved  his  equity  to  insist  upon  an 
application  of  the  assets  to  the  debts,  and  the  courts  will 
enforce  it.^ 

But  a  promise  to  do  the  best  he  could  with  the  assets  towards 
the  firm  debts  creates  no  lien,'  and  it  was  doubted  whether  a  sale 
"  subject  to  the  payment  of  debts  "  with  an  agreement  of  indem- 
nity shows  an  intention  to  reserve  a  lien ;  ■*  but  if  the  sale  is  to  a 
third  person  on  such  terms,  the  title  was  held  not  to  have  passed, 

1  Savage  v.  Carter,  9  Dana,  408;  (N.  Y. )  669 ;  Cory  v.  Long,  2  Sweeny, 
Croonev.  Bivens,  2  Head,  339;  Grif-  491;  Robb  v.  Stevens,  1  Clarke,  Ch. 
fith  V.  Buck,  13  Md.  102,  IIG;  Rogers  195;  Rogers  v.  Nichols,  20  Tex.  719; 
U.Nichols,  20  Tex.  719,  724.  As  to  Shackelford  u.  Shackelford,  32  Gratt. 
the  rights  of  a  retiring  partner  in  481;  and  Roop  v.  Herron,  15  Neb. 
those  states  where  he  is  regarded  as  73,  might  have  been  put  on  this 
a  surety  to  compel  continuing  part-  ground.  In  this  case,  after  a  partner 
ners  to  pay  the  debts,  see  §  532.  had  retired,  merely  assigning  liis  in- 

2  Payne  v.  Hornby,  25  Beav.  2S0 ;  terest  to  his  copartner,  who  agreed 
Kilseyu  Hobby,  IG  Pet.  2G9;  Mat-  to  pay  the  debts,  the  firm  being 
ter  of  Shepard,  3  Ben.  347 ;  Sedam  u.  insolvent,  the  counsel  of  the  out- 
Williams,  4  McLean,  51 ;  Marsh  v.  going  partner  was  regarded  as  nee- 
Bennett,  5  McLean,  117;  Talbot  v.  essary  to  a  transfer  of  assets  to  pay 
Pierce,  14  B.  Mon.  158;  Bowman  i>.  the  separate  debt  of  the  remaining 
Spalding  (Ky.),   2   S.   W.    Rep.   911;  partner. 

Harmon  v.  Clark,  13  Gray,  114;  Top-       3  Hapgood  v.  Cornwell,  48  111.  64. 
liff  u.  Vail,  1  Harr.  Ch.  (Mich.)  310;       ^Langmead's  Trusts,  7  DeG.  M.  & 
Wildes  V.    Chapman,    4    Edw.    Ch.    G.  353. 

572 


CONVERSION  OF  JOINT  INTO  SEPARATE  PROPERTY.     §  553. 

and  therefore  not  to  be  afifected  by  execution  for  a  private  debt  of 
the  buyer.' 

If  the  retiring  partner  reserves  a  lien  for  the  payment  of 
debts,  such  lien  extends  to  the  entire  assets  and  not  merely 
to  his  proportion  of  them  or  of  the  tangible  property,^  but 
not  to  subsequent  acquisitions.^ 

§  553.  Illustrations. —  Where  the  buying  partner  agrees  to 
pay  all  the  debts  and  wind  up  the  business,  applying  the  assets  as 
fast  as  realized  to  the  debts  and  keep  an  account,  this  shows  an  in- 
tention to  preserve  the  lien,  and  the  contract  makes  the  buyer  a 
trustee;  hence  on  his  death  that  part  of  his  estate' consisting  of  the 
former  partnership  assets  will  be  applied  to  the  firm's  debts/ 

In  Menagh  v.  Whitwell,^  it  was  said  by  Allen",  J.,  that  the 
sale  by  one  partner  to  another  reserves  no  lien  when  new  rights 
have  attached  by  reason  of  such  change  of  interest,  as  where  the 
transfer  is  to  a  sole  partner  and  the  rights  of  his  individual  credit- 
ors have  accrued,  or  the  new  firm  has  exercised  the  jus  disponendi 
which  they  have,  or  there  are  creditors  of  the  new  firm.  But  there 
is  no  reason  why,  when  no  adverse  or  paramount  rights  have  at- 
tached to  the  joint  property,  the  same  equity  should  not  be 
recognized  in  the  retiring  partner  as  if  he  had  been  a  continuing 
partner.* 

In  Harmon  v.  Clark,'  a  dissolution  and  conveyance  by  one 
partner  of  all  the  assets  to  the  other,  who  agreed  to  pay  all  the 
debts,  and  after  their  payment  to  convey  one  undivided  half  back 
to  the  retiring  partner,  was  held  not  to  be  a  conveyance  and  con- 
version of  the  joint  property  into  separate  property,  leaving  no 
duty  on  it,  and  taking  only  the  personal  agreement  of  the  co- 
partner to  pay  debts,  but  it  fixes  a  trust  upon  the  property  for 
tbe  benefit  of  the  retiring  partner  and  creates  a  clear  equity  in  his 
favor.  The  right  to  enforce  this  trust  devolves,  in  case  of  insolv- 
ency, on  the  joint  creditors,  who  can  insist  that  the  equitable  claim 

1  Stevenson  u.  Sexsmith,  21  Grant's  5  52  N.  Y.  146,167  (11  Am.  Rep. 
Ch.  (Up.  Can.)  355.  683). 

2  Northrup  V.  McGill,  27  Mich.  234.  ^This    idea   was     also    suggested 

3  Kerr  v.  Bradford,  26  Up.  Can.  C.  in  Shackelford  v.  Shackelford,  32 
P.  318.  Gratt.  48],  503. 

<  Shackelford    v.    Shackelford,   32       "13  Gray,  114. 
Gratt.  481. 

573 


§  5c4.  CONDUCT  OF  THE  BUSINESS. 

of  the  partner  shall  he  worked  out  and  the  property  applied  to 
the  paj'raent  of  the  joint  dehts  and  not  to  separate  dehts. 

In  Kitchen  v.  Lee/  K.  &  L,  were  partners,  and  L.  was  a  minor. 
They  dissolved,  K.  conveying  to  L.  all  his  interest  in  the  firm  on 
condition  that  L,  would  pay  the  dehts.  L.  suhsequently  refused  to 
pay  them  on  the  ground  of  infancy.  Here  it  was  held  that  he 
could  not  retain  the  assets  and  refuse  to  pay  the  debts.' 

When,  however,  the  retiring  partner  is  to  receive  a  bond  to  se- 
cure the  purchase  money  agreed  to  be  paid  to  him,  the  contract  is 
executory  until  it  is  given,  and  his  lien  continues  until  then.' 

§  554.  Remedies  in  such  case. —  If  a  lien  is  reserved  it  can 
be  enforced  against  a  voluntary  transferee.*  But  a  purchaser 
for  value  of  an  asset  is  not  bound  to  see  to  the  application  of 
the  purchase  money,  and  is  justified  in  assuming  it  will 
be  properly  applied.^  The  lien  being  retained,  it  and  a  rem- 
edy upon  it  are  the  same  as  in  case  of  dissolution  without 
sale,^  and  the  rights  of  firm  creditors  to  be  subrogated  to  it 
when  the  court  is  administering  the  concern  is  the  same  as 
before.^ 

In  Kellogg  V.  Fox,*  K.,  of  B.  &  K.,  sold  out  his  interest  in  the 
firm  to  F.  &  M.,  with  whom  B.  then  went  into  partnership  as  B., 
F.  &  Co.,  the  terms  of  sale  being  that  the  interest  sold  should  remain 
K.'s  property  until  paid  for.   Afterwards  the  new  firm  sold  some  of 

111  Paige,  107.  an  adequate  remedy  at  law,  no  dis- 

2  Contrary  to  the    above  cases  it  covery    being    sought    and    the  ac- 

was  held  in  Clarke's  Appeal,  107  Pa.  counts  being  all  on   one  side,    nor 

St.  436,  where  the  articles  of  part-  could  the  bill  be  sustained  on  the 

nership  provided  that    any  partner  ground  of  a  trust. 

could  sell  his  share,  and  in  that  case  ^See  g  540;  Ex  parte  Wood,  10  Ch. 

the    continuing    partners    and    the  D.  554 ;  Fitzgerald  v.  Cross,  20  N.  J. 

buyer  of  the  share  were  bound  to  ex-  Eq.  90. 

onerate  him  from  all  debts,  and  ap-  *  Wildes  v.  Chapman,  4  Edw.  Ch. 

ply  the  assets  to  pay  the  debts.     The  CG9. 

plaintiffs  sold  their  shares,  but  were  'Per    Knight     Bruce,    L.   J.,    in 

afterwards  compelled  to  pay  debts,  Langmead's  Trusts,  7  De  G.  M.  &  G. 

and  applied  to  equity  for  reimburse-  353. 

ment;   that  equity   had  no  jurisdic-  6  Rogers  u.  Nichols,  20  Tex.  719. 

tion  to  wind  up  and  compel  a  reim-  ''  Buck  Stove  Co.  v.  Johnson,  7  Lea 

bursement ;  that  the  plaintiffs  were  (Tenn.),  282. 

creditors  and  not  partners,  the  same  8  45  yt.  348. 

as  any  partner  who  has  sold  and  had 

574 


CONVERSION  OF  JOINT  INTO  SEPARATE  PROPERTY.     §  555. 

the  property  in  good  faith,  but  F.  &  M.  appropriated  the  avails  to 
their  own  use  without  paying  K.,  who  brought  trover.  It  was  hehl 
that  the  action  would  not  lie.  The  reservation  of  interest  by  K. 
was  only  as  partner  of  B.,  and  B.  had  the  same  power  of  disposition 
after  as  before  the  dissolution,  and  F.  &  M.  are  not  liable  for  par- 
ticipation in  a  sale  which  B.  had  the  right  to  make. 

In  McGown  v.  Sprague,'  it  was  held  that  if  the  partner  who  buys 
out  the  other  and  assumes  the  debts,  absconds  without  paj'ing 
debts,  the  selling  partner  could  consider  himself  released  from  the 
contract,  and  a  court  would  release  him  from  it  and  reinstate  him 
in  his  original  rights  as  partner  and  restore  his  lien,  and  he  could 
therenpou  have  the  assets  applied  to  the  partnership  debts  prior  to 
the  individual  debts  of  the  copartner;  Ligon,  J.,  dissenting. 

A  retiring  partner  who  has  reserved  his  lien  can  file  a  bill  to  have 
the  assets  applied  to  the  firm's  debts  in  case  of  breach  of  duty  or 
contract,  or  in  case  of  fraud;  ^  though  not  on  mere  apprehension  of 
loss  without  misconduct;  ^  that  he  can  file  such  a  bill  against  the 
administrator  of  the  continuing  partner,  who  is  under  an  insuffi- 
cient administration  bond.* 

Where  on  dissolution  a  partner  merely  left  an  amount  of  assets 
equal  to  the  debts  in  the  hands  of  a  copartner  without  selling  to 
him,  and  the  latter  agreed  to  pay  the  debts  but  kept  on  in  business, 
incurred  new  debts,  and  after  execution  had  been  levied  on  the 
stock  assigned  for  the  benefit  of  creditors,  the  former  partner  can 
insist  on  his  lien." 

SUCCESSIVE  FIRMS. 

§  655.  The  foregoing  principles  afford  an  easy  solution  to 
the  question  of  the  distribution  of  the  assets  of  successive 
partnerships  in  the  same  business.  These  changes  of  part- 
nership may  occur  in  various  ways,  as  by  a  partner  selling 
his  interest  to  a  third  person  who  is  taken  into  the  firm  in 
his  place,  or  by  a  partner  retiring  or  dying,  the  business 

1 23  Ala.  524  5  Parker  v.   Merritt,   105  111.   293. 

2  Darden  v.  Crosby,  30  Tex.  150.         And  see  Williamson  v.    Adams,  16 

3  Walker  v.  Trott,  4  Edw.  Ch.  88.     111.  App.  564.     And  see  §  105. 
<  Shackelford    v.    Shackelford,   33 

Gratt.  481. 

575 


S  550.  CONDUCT  OF  THE  BUSINESS. 

being  continued,  or  by  a  firm  taking  in  a  new  partner  with- 
out the  retirement  of  any  member. 

In  all  these  cases  the  property  of  the  old  firm  is  converted 
into  that  of  the  new,  and  the  partners  in  the  new  firm  have 
an  equitable  lien  to  have  it  applied  to  the  creditors  of  the 
latter  firm,  which  lien  the  court  will  use  in  favor  of  such 
creditors  until  they  are  paid  in  full,  to  the  exclusion  of  cred- 
itors of  former  firms.  ^ 

§  55().  Illustrations;  retirement  of  old  witlioiit  new  part- 
ner.—  We  have  already  seen  that  a  partner  who  retires 
suffering  the  continuing  partners  to  go  on  with  the  old 
assets  as  a  new  firm  has  lost  his  equity  to  compel  their  ap- 
plication to  the  debts  of  the  original  firm.^  From  this  it 
follows  that  the  original  creditors  whose  priority  is  worked 
out  through  the  partners'  equity  is  also  gone,  and  the  prop- 
erty will  be  devoted  first  to  the  debts  of  the  new  concern.'' 

For  example,  if,  of  a  partnership  of  five  persons,  two  retire  and 
tlie  remaining  three  agree  to  pay  the  debts  and  form  a  new  firm, 
then  one  of  these  retires  and  the  other  two  form  a  firm  with  the 
remaining  assets,  but  become  insolvent  and  assign  for  the  benefit  of 
their  creditors,  creditors  of  the  former  firms  cannot  claim  any  part 
of  the  fund  until  those  of  the  last  firm  are  paid  in  full.* 

So  where  C.  &  Co.,  who  were  indebted  to  the  plaintiff,  dissolved, 
and  two  of  its  members  formed  a  new  firm  as  C.  &  B.,  taking  the 
assets  and  assuming  the  debts,  the  plaintiff,  hovvever,  not  assenting 
to  the  substitution  of  debtors,  and  C.  &  B.  assigned  for  benefit  of 
creditors  and  as  a  firm,  this  was  held  equivalent  to  three  assign- 
ments, and  the  plaintiff  cannot  come  in  as  a  creditor  of  the  firm  of 
C.  &  B.,  for  he  is  a  creditor  of  C.  and  of  B.  as  individuals.' 

1  Camp  V.  Mayer,  47  Ga.  414 ;  Gor-  firm  has  no  creditors,  Dennis  v.  Ray, 
don  V.  Cannon,  18  Gratt,  887 ;  Hobbs    9  Ga.  449. 

V.   Wilson,  1   W.   Va.    50;  Tracy  v.  <  Baker's  Appeal,  21  Pa.  Sfc.  76. 
Walker,    1   Flip.    41;    3   West    Law  » Scull   v.  Alter,  16  N.   J.  L.    147. 
Month.  574,  and  the  illustx-ations  in  This  case  also  held  that  plaintiff  can- 
next  section.  not  come  upon  the  separate  estates 

2  §  550.  until  he  has  exhausted  the  partuer- 

3  That  the  old  creditors  can  compel  sliip  assets  of  C.  &  Co.  or  shown  that 
the  new  firm  to  account  if  the  new  firm  also  to  be  insolvent.     This  is  on 

576 


CONVERSION  OF  JOINT  INTO  SEPARATE  PROPERTY.     §  557. 

Hence,  also,  the  assignment  for  creditors  by  the  new  firm  must 
be  for  the  creditors  of  the  new  firm  and  cannot  provide  for  pay- 
ment of  those  of  the  okl  on  an  equality  with  them." 

Where  the  dissolution  is  by  the  death  of  a  partner,  and  the  execu- 
tor does  not  part  with  his  equitable  right  to  require  debts  to  be 
paid,  a  continuance  of  business  by  the  survivor  with  the  old  assets 
cannot  avail  to  postpone  the  old  debts  to  the  new  ones.*  And  as 
the  property  of  the  creditors  of  the  new  firm  may  have  added  to  the 
funds,  both  sets  of  creditors  will  share  ^ari  passu^  the  representa- 
tives of  the  deceased  partner  who  permitted  the  business  to  go  on 
not  being  allowed  to  complain.^ 

In  Hoyt  V.  Sprague,*  the  lien  of  the  executor  of  a  deceased  part- 
ner who  had  acquiesced  in  the  continuance  of  the  business  with  the 
old  assets  is  lost  as  to  new  property  which,  in  the  course  of  busi- 
ness, takes  the  place  of  the  old,  and  he  is  not  even  a  creditor  of  the 
new  firm  and  cannot  ^Xvcxre  pari  passu  with  the  new  creditors;  but 
the  opinion  seems  to  regard  his  lien  as  continuing  to  exist  in  such 
of  the  old  assets  as  remain  in  specie.* 

§557.  New  partner  on  retirement  of  okl. —  An  old  firm 
dissolves,  and  a  partner  receives  from  it  a  specific  portion  of  the 
assets,  for  which  he  is  to  pay  a  certain  sum,  but  never  does  so,  and 
these  assets  are  transferred  to  him  for  the  purpose  of  contributing 
them  as  his  share  of  the  capital  of  a  new  firm,  composed  of  some 

the  doctrine  that  a  person  having  a       5  in   New  Hampshire,    where  the 

lieu  upon  two  funds   must  exhaust  creditors'  priority  is  in  some  degree 

that  first  on  which  others  have  no  inherent  in  themselves   and  not 

lieu,  and  is  not  universally  accepted  worlied    out    through    a    partner's 

as  the  rule.  equity,  their  paramount  right  is  not 

1  Lester  u.  Pollock,  3  Robt.  (N.  Y.)  intercepted  by  any  management  of 

691 ;  s.  C.  as  Lester  v.  Abbott,  28  How.  the  surviving  partners  among  them- 

Pr.  483;  Smith  v.  Howard,  20  How.  selves,  and  any  property  of  the  orig- 

Pr.  121.  inal  firm  which  can  be  traced  through 

2Deveau  v.  Fowler,   2  Paige,  400.  successive  fii-ms  will  be  devoted  to 

Here  there  was  but  one  survivor,  and  the  original  creditors,  as  against  later 

hence  not  a  new  firm.     The  act  of  debts  or  attachments  or  seizures  by 

the   executor   here  would   not  gen-  creditors  of  the  new  firms.     And  the 

erally  be  regarded  as  a  reservation  of  administrator's  assent  makes  no  dif- 

his  lien.  ference,  as  he  has  nothing  to  do  with 

3  Filley  v.  Phelps,  18  Conn.  294,  304.  the  assets.     Benson  v.  Ela,  35  N.  H. 

And  see  ^o; par ^e  Chuck,  8  Bing.  469,  402.     This  rule  would,  perhaps,  also 

cited  in  g  558.  obtain  in  Vermont  and  Missouri. 

*  103  U.  S.  613. 

Vol.  I  — 37  577 


§  557.  CONDUCT  OF  THE  BUSINESS. 

members  of  the  old  firm  and  others,  and  are  so  contributed.  But 
the  new  firm  shortly  dissolved,  some  of  the  members  taking  all  the 
assets,  and  giving  him  a  note  for  the  valuation  of  all  the  goods  he 
had  so  contributed,  being  the  same  amount  which  he  owes  the  old 
firm  for  them.  The  proceeds  of  this  note  when  collected  belong  to 
his  personal  estate,  although  the  old  firm  is  insolvent  and  his  debt 
to  it  has  not  been  paid.' 

X.,  of  G.  &  X.,  sold  out  to  H.  all  his  interest  in  the  firm,  H. 
covenanting  to  pay  debts  and  hold  him  harmless,  and  the  partner- 
ship of  G.  &  H.  was  then  formed.  G.  &  H.  having  assigned  for  the 
benefit  of  creditors,  the  creditors  of  G.  &  X.  claimed  a  lien  and 
charge  upon  the  property  of  G.  &  X.  and  a  right  to  follow  that 
property  into  the  new  firm  as  against  its  creditors.  But  as  the 
priority  of  creditors  is  only  through  the  partners,  no  such  relief 
can  be  granted.' 

Indeed,  a  person  who  transfers  to  another  goods  for  the  purpose 
of  being  contributed  by  the  latter  to  the  capital  of  a  new  firm  of 
which  he  is  becoming  a  member,  cannot  reserve  a  lien  or  claim  or 
trust  in  the  interest  of  such  person  in  the  new  firm  or  in  such 
property  without  the  assent  of  the  other  partners.' 

But  where  the  property  to  be  contributed  is  not  the  entire  in- 
terest, but  a  specific  share,  subject  to  a  purchase  money  mortgage 
to  the  retiring  partner,  such  mortgage  will  have  priority  over 
mortgages  by  the  new  firm  to  subsequent  creditors.  Thus,  where 
by  agreement  of  both  partners  of  a  firm  of  two,  one  sold  out  his 
interest  to  a  third  person,  in  order  that  the  latter  might  form  a 
partnership  with  the  continuing  partner,  and  deeded  to  him  an  un- 
divided half  of  the  partnership  real  estate.  The  new  partner 
mortgaged  back  the  real  estate  to  the  retiring  partner  to  secure  the 
price  and  payment  of  his  share  of  the  debts.  The  new  firm  after- 
wards mortgaged  the  property  to  subsequent  partnership  creditors. 

*  Richardson  V.  Tobey,  3  Allen,  81.  ley  v.    Winkelmeyer,    56    Mo.    562; 

2  Allen  V.  Grissom,  90  N.  Ca.  90.  Hart  v.  Tomlinson,  2  Vt.  101.  Con- 
For  other  cases  of  one  partner  going  tra,  in  New  Hampshire,  for  in  that 
out  and  a  new  one  coming  in,  hold-  state  the  creditors'  priority  is  inher- 
ing as  above,  see  Crane  v.  Morrison,  ent  in  them  and  not  entirely  de- 
4Sawy.  138;  ITBankr.  Reg.  393;  Ut-  pendent  on  the  partner's  equity, 
ley  V.  Smith,  24  Conn.  290 ;  Menagh  Spurr  v.  Russell,  59  N.  H.  338. 
V.  Whitwell,  53  N.  Y.  146;  McCauly  3  Richardson  v.  Tobey,  3  Allen,  81, 
V.  McFarlane,  2  Desaus.  (S.  Ca.)  239;  83. 
Dayton  v.  Wilkes,  5  Bosw.  655 ;  Ack- 

578 


CONVERSION  OF  JOINT  INTO  SEPARATE  PROPERTY.     §  5:)8. 

The  former  mortgage  was  held  the  superior  lien,  as  not  being  a 
mortgage  of  the  mere  surplus  or  individual  interest,  but  the  in- 
terest in  such  property  had  in  effect  been  converted  into  separate 
property,  and  the  continuing  partner  had  waived  the  lien  in  it  as 
against  the  mortgage;  hence  the  creditors  could  assert  none.* 

§  558.  New  partner,  no  old  one  retiring. —  Where  a  firm 
takes  in  another  partner,  the  lien  of  one  of  the  original 
partners  to  have  the  assets  subjected  to  the  debts  of  the  old 
firm  is  lost,  and  after  dissolution  of  the  new  firm  by  death 
of  one  of  the  original  partners,  and  a  finding  by  court  of  the 
amount  due  his  administrator  and  its  payment  to  him,  such 
fund  cannot  be  reached  on  behalf  of  creditors  of  the  old 
firm.^ 

So,  where  C.  &  D.,  a  firm,  incurred  a  debt,  then  M.  came 
into  the  firm,  the  business  being  continued  in  the  old  name, 
then  the  creditor  attached;  this  is  governed  by  the  rules  ap- 
plicable to  the  attachment  of  the  interest  of  an  individual 
partner  for  his  separate  debt,  and  the  claims  of  the  creditors 
of  the  new  firm,  including  the  claims  of  the  new  partner, 
will  be  protected  as  prior.' 

Where  the  incoming  partner  comes  in  as  a  secret  partner,  the 
assets  will  be  treated  as  still  those  of  the  ostensible  partners  and 
both  sets  of  creditors  share  pari  passu^  And  so  if  the  new  firm 
has  assumed  the  debts  of  the  old,*  but  not  if  the  creditor  has  not 

iBeecher  t;.  Stevens,  43  Conn.  587.  New   Hampshire,    where   the   cred- 

2  Coffin  V.  McCullough,  30  Ala.  107.  iter's  priority  is  independent  of  the 

And  see  Meador  v.  Hughes,  14  Bush,  partner's  equitable  lien,  the  creditors 

653.  of  the  old  firm  will  share  equally 

s  Meyberg  v.  Steagall,  51  Tex.  351.  with  those  of  the  new,  for  all  assets 

See,  also,  Childs  v.  Walker,  2  Allen,  and  liabilities  continue  after  the  ad- 

259,   262;  Locke  v.  Hall,  9  Me.  133;  mission  of  a  new  partner  the  same  as 

Hurlbut  V.  Johnson,  74  111.  64,  where  before,  and  the  creditors  of  the  old 

a  person  in  business  and  in  debt  took  firm  have  rather  the  higher  equity, 

in  a  partner  and  they  bought  more  Shedd  v.   Bank  of  Brattleboro,    32 

goods  on  credit,  at  least  all  the  as-  Vt.  709,  714;  Spurr  v.  Russell,  59  N. 

sets,  except  the  original  partner's  in-  H.  338. 

terest  in  the  prior  goods  so  far  as       ^  Ex  parte  Chnck,  8  Bing.  469;  and 

they  can  be  identified,  must  be  first  see  Filley  v.    Phelps,  18  Conn.   294, 

used  to  pay  those  who  sold  the  new  304,  cited  in  §  556. 
goods.    In  Vermont,  however,  as  in       5  Smead  v.  Lacey,  1  Disney,  239. 

679 


§  559.  CONDUCT  OF  THE  BUSINESS. 

assented  to  the  novation.'  Hence,  wliere  a  firm  took  in  a  new 
partner,  the  new  firm  receiving  all  the  effects  of  the  old,  and  the 
partners  agreeing  with  each  other  to  pay  its  debts,  and  the  new 
firm  became  insolvent,  and  a  creditor  of  the  old  attached  its  stock, 
and  subsequently  creditors  of  the  new  firm  attached,  the  sheriff  is 
not  liable  to  the  creditor  of  the  old  for  giving  priority  to  the  latter 
attachments.  The  promise  of  the  partners  inter  se  to  pay  the  old 
debts  is  not  available  to  the  creditor  until  he  knows  of  and  assents 
to  it."* 

FRAUDULENT   CONVEYANCES. 

§  559.  Sale  between  partners. —  It  is  clear  that  while  the 
partnership  is  solvent  and  going  on,  the  partners  may  by- 
unanimous  assent  or  joint  act  do  what  they  please  with  the 
assets,  if  the  act  is  bona  fide.  The  creditor  has  no  equity 
against  the  property;  and  if  one  partner  assigns  his  interest 
to  the  copartner,  the  creditor  can  obtain  judgment  against 
all,  and  levy  on  the  property  of  each,  and  if  the  execution  is 
against  the  partnership  effects,  he  holds  them  not  in  respect 
of  any  interest  as  mere  joint  creditor,  but  by  virtue  of  the 
execution.  Where  the  assignment  by  one  partner  to  the 
other  is  on  a  consideration  paid,  or,  what  is  equal  to  con- 
sideration, an  agreement  to  pay  debts  and  indemnify  against 
them,  it  is  a  change  of  joint  into  separate  property.  The 
only  question  is  upon  the  bona  fides  of  the  transaction.  If 
such  an  arrangement  could  not  be  made  a  partner  never 
could  retire. 

In  Ex  parte  Ruffin,  6  Ves.  119,  before  Lord  Eldon,  1801,  a 
leading  case,  Thomas  Cooper  and  James  Cooper  were  partners,  and 
dissolved,  Thomas  retiring  and  selling  his  interest  to  James  at  a 
valuation  to  be  made,  James  covenanting  to  pay  debts  and  indem- 
nify Thomas  against  them,  and  giving  him  a  bond  with  surety  for 
£3,000,  the  estimated  value  of  his  interest.  A  year  and  a  half 
afterwards,  James  became  bankrupt.  The  joint  creditors  claimed  a 
priority  on  distribution  in  the  partnership  effects  remaining  in 
specie.  Lord  Eldon  stating  that  creditors  of  a  partnership  had  no 
lien,  but  only  a  right  to  sue,  and  that  in  case  of  dissolution  by 

1  Scull  V.  Alter,  16  N.  J.  L.  147 ;       2  Locke  v.  Hall,  9  Me.  133. 
Locke  V.  Hall,  9  Me.  133 ;  and  see  §  503. 

580 


CONVERSION  OF  JOINT  INTO  SEPARATE  PROPERTY.     §  560. 

death  or  banlcruptcy,  where  the  court  administers,  the  joint  credit- 
ors are  first  paid,  in  order  to  do  justice  to  the  partners  themselves, 
the  equity  being  that  of  the  partners  and  not  of  the  creditors;  but 
where  the  dissohition  is  a  partner's  own  act,  and,  instead  of  calling 
on  the  effects  according  to  his  equity  to  pay  the  debts,  he  assigns 
his  interest  to  the  other  to  deal  with  as  he  pleases,  the  equity  is 
goae,  the  assignment  not  being  made  subject  to  the  payment  of 
debts,  but  in  consideration  of  a  personal  obligation  of  the  assignee 
to  pay  the  debts.  The  creditors  therefore  cannot  rest  upon  the 
equity  of  the  partner  going  out.' 

§  5  GO.  authorities   holding   it  valid. —  A    sale    for 

valuable  consideration  by  one  partner,  not  made  in  contem- 
plation of  bankruptcy,  to  his  copartner  or  to  a  third  person, 
of  all  his  interest  in  the  firm,  unlike  the  case  of  a  gift  or 
payment  of  the  separate  debt  of  a  copartner,  is  as  valid  to 
transfer  the  entire  property  to  the  vendee  as  is  a  sale  be- 
tween any  individuals,  although  the  buyer  and  seller  are  in- 
solvent and  thus  defeat  their  creditors;  and  as  the  firm 
creditors  have  no  lien,  the  buyer  can  dispose  of  the  prop- 
erty as  his  own  and  pay  his  separate  creditors,  to  the  ex- 
clusion of  joint  creditors,  or  vice  versa.^ 

1  Tliis  case  is  approved  and  ex-  Pfirrman  v.  Koch,  1  Cint.  Superior 
plained  further  in  E'xparfe  Williams  Ct.  Rep.  460;  Gallagher's  Appeal 
llVes.  3.  Also  Huiskamp  V.  Moline  (Pa.),  7  Atl.  R.  237;  Waterman  v. 
Wagon  Co.  121  U.  S.  310  (reversing  Hunt,  2  R.  I.  298,  303;  Shackelford 
S.  c.  as  Moline  Wagon  Co.  v.  Rum-  v.  Shackelford,  32  Gratt.  481. 
mell,  2  McCrary,  307;  12  Fed.  Rep.  ^Ex  parte  Peake,  1  Mad.  346;  Ex 
658;  14  id.  155);  Fitzpatrick  v.  Flan-  parte  Carpenter,  Mont.  &  McA.  1; 
nagan,  106  U.  S.  648,  655-6;  Shimer  Parker  v.  Ramsbottom,  3  B.  &  C. 
V.  Huber,  19  Bankr.  Reg.  414;  Aus-  257;  5  Dow.  &  Ry.  138;  Case  v.  Beau- 
tin  V.  Seligman,  21  Blatchf.  508;  18  regard,  99  U.  S.  119;  1  W^oods,  C.  C. 
Fed.  Rep.  519;  Lamkin  v.  Phillips,  9  127;  Fitzpatrick  v.  Flannagan,  106 
Porter  (Ala.),  98;  Mayer  v.  Clark,  40  U.  S.  648,  655-6;  Huiskamp  u.  Moline 
Ala.  259;  Robertson  v.  Baker,  11  Fla.  Wagon  Co.  121  U.  S.  310  (reversing 
192;  McDonald  v.  Beach,  2  Blackf.  S.  c.  as  Moline  Wagon  Co.  v.  Rum- 
55;  Upson  v.  Arnold,  19  Ga.  190  (63  mell,  2  McCrary,  307;  12  Fed.  Rep. 
Am.  Dec.  302);  Wilson  v.  Soper,  13  658;  14  id.  155);  Re  Bjornstad,  18 
B.  Mon.  411  (56  Am.  Dec.  573);  Coak-  Bankr.  Reg.  282;  Be  Downing,  1 
ley  V.  Weil,  47  Md.  277;  Parish  v.  Dill.  33;  J2e  Wiley,  4  Biss.  214,  here 
Lewis,  1  Freem.  (Miss.)  Ch.  299 ;  Field  all  the  property  was  conveyed  to  one 
V.  Chapman,  15  Abb.  Pr.  434;  partner  and  he  became  bankrupt; 
McGregor  v.   Ellis,    2    Disney,    286;  Tracy  v.  Walker,  1  Flip.  41 ;  S.  C.  3 

581 


§560. 


CONDUCT  OF  THE  BUSINESS. 


So  one  partner  may  buy  out  the  other,  and  the  property  being 
thus  his  separate  estate,  may  claim  exemptions  in  lieu  of  execution 
or  homestead  in  it,' 

West.  Law  Month.  574 ;  Shimer  v.  596 ;  Dimon  v.  Hazard,  33  N.  Y.  65, 
Huber,  19  Bankr.  Reg.  414;  Reese  u  here  the  buyer  assigned  for  benefit 
Bradford,  13  Ala.  846;  Lamkin  v.  of  his  creditors;  Stanton  v.  West- 
Phillips,  9  Porter  (Ala.),  98;  McGown  over  (N.  Y.  1886),  4  N.  E.  Rep.  529, 
V.  Sprague,  23  Ala.  534 ;  Mayer  v.  here  the  buyer  was  largely  a  cred- 
Clark,  40  Ala.  259,  held  to  be  sepa-  itor  of  the  firm;  the  firm  was  heav- 
rate  property  on  contest  between  an  ily  in  debt ;  he  transferred  to  a  single 
execution  creditor  of  the  firm  and  a  joint  creditor;  Rankin  v.  Jones,  2 
mortgagee  for  a  past  debt  of  the  Jones  (N,  Ca.),  Eq.  169,  here  the 
transferee  partner;  Jones  v.  Fletcher,  buyer  assigned  for  benefit  of  credit- 
42  Ark.  422;  Allen  v.  Center  Valley  ors;  Potts  v.  Blackwell,  4  Jones,  Eq. 
Co.  21  Conn.  130  (54  Am.  Dec.  333),  58;  McGregor  u  Ellis,  2  Disney,  286; 
where  the  firm  sold  the  property  and  Pfirrman  v.  Koch,  1  Cincinnati  Su- 
divided  the  proceeds  while  insolvent;  perior  Ct.  Rep.  460;  Wilcox  v.  Kel- 
Upson  v.  Arnold,  19  Ga.  190  (63  Am.  logg,  11  Oh.  394;  Belknap  v.  Cram, 
Dec.  302),  where  -the  buyer  subse-  n  id.  411;  Miller  v.  Estill,  5  Oh.  St. 
queutly  became  insolvent;  Hapgood  508,516-17;  Clark  v.  McClelland,  3 
V.  Cornwell,  48  111.  64;  Goembel  v.  Grant's  Cas.   (Pa.)  31,  the  buyer  be- 


Arnett,  100  111.  34;  Williams  v.  Ad- 
ams, 16  111.  App.  564;  Dunham  v. 
Hanna,  18  Ind.  270;  Trentman  v. 
Swartzell,  85  lud.  443;  George  v. 
Wamsley,  64  Iowa,  175;  Wilsson  v. 
Soper,  13  B.  Mon.  411   (56  Am.  Dec. 


came  insolvent;  Waterman  v.  Hunt, 
2  R.  I.  298,  303;  White  v.  Parish,  20 
Tex.  688,  693 ;  Shackelford  v.  Shack- 
elford, 33  Gratt.  481 ;  David  v.  Birch- 
ard,  53  Wis.  492,  497.  And  see  Vosper 
V.  Kramer,   31   N.  J.  Eq.  420.     See, 


573) ;   Armstrong  v.  Fahnestock,   19   also,  the  extreme  cases  under  §  568. 


Md.  58,  here  all  were  insolvent  and 
the  buyer  assigned  all  to  an  individ- 
ual creditor;  Coakley  v.  Weil,  47 
Md.  277 ;  Guild  v.  Leonard,  18  Pick. 
611;  Richardson  v.   Tobey,  3  Allen, 


In  Howe  v.  Lawrence,  9  Cush.  553, 
557  (57  Am.  Dec.  68),  it  was  said 
that  the  right  of  a  partner  to  sell 
out  his  entire  interest  to  a  copartner, 
wholly  free  from  the  claims  of  joint 


81,    here    the    firm    was    insolvent;  creditors,  since  they  have  no  lien, 

Kimball  v.  Thompson,  13  Met.  283;  although  the  firm  and  both  partners 

Howe  V.   Lawrence,  9  Cush.  553  (57  are  insolvent,  must  be  exercised  bona 

Am.    Dec.    68),     here  the  firm  and  fide  for  the  purpose   of  closing  the 

both  partners  were  insolvent;   Rich-  affairs  of  the  partnership, 
ards  V.  Manson,  101  Mass.  483 ;  Par-       l  Burton  v.  Baum,    33  Kan.    641 

ish  V.  Lewis,    1   Freem.  (Miss.)  Ch.  Worman  v.    Giddey,    30  Mich.  151 

299;  Fulton  v.  Hughes,  63  Miss.  61,  State  v.    Thomas,    7  Mo.  App.  205 

here  the  buyer  turned  over  the  stock  Mortley  v.  Flanagan,  38  Oh.  St.  401 

to  his  separate  creditor  as  payment;  Gill  v.  Lattimore,  9  Lea,  381;  Griffie 

Robb  V.  Stevens,  Clarke,  Ch.  (N.  Y.)  v.   Maxey,    58    Tex.    210.       Contra, 

191,     here   the    buyer    assigned   for  that  if  the  conversion  from  joint  to 

creditors ;  Sage  v.  Chollar,  21  Barb,  separate  is  on  the  eve  of  insolvency 

583 


CONVERSION  OF  JOINT  INTO  SEPARATE  PROPERTY.     §  560. 

In  Hapgood  v.  Cornwell,  48  111.  64,  H.,  a  private  creditor  of  one 
of  three  partners,  believing  his  debt  to  be  in  danger,  persuaded  the 
debtor  to  buy  out  his  copartners,  advancing  to  him  over  810,000 
for  the  purpose,  and  to  turn  the  stock  thus  purchased  over  to  him, 
whereupon  a  judgment  creditor  of  the  firm  filed  a  bill  against  H. 
The  transaction  was  held  to  be  legal,  and  the  buying  partner  to 
have  received  the  stock  discharged  of  any  claim  of  partnership 
creditors,  they  having  no  lien  except  through  the  partners. 

In  Second  Nat'l  Bk.  v.  Farr  (N.  J.),  7  Atl.  Rep.  892,  a  partner 
personally  liable  for  debts,  by  false  statements  of  his  ability  to  pay 
his  separate  and  the  firm's  debts  induced  his  copartner  to  sell  out 
to  him  his  interest  in  the  partnership  and  then  assigned  for  the 
benefit  of  creditors,  thus  letting  in  his  separate  creditors  first.  The 
sale  was  set  aside  at  the  suit  of  judgment  creditors  of  the  partner- 
ship, as  in  fraud  of  their  rights. 

In  Hawk  Eye  Woolen  Mills  v.  Conklin,  26  Iowa,  422,  J.  and  Y., 
partners,  were  indebted  to  the  plaintiff.  J.  retired,  V.  agreeing  to 
pay  the  debts.  Y.  then  sold  one-half  the  stock  to  C,  and  Y.  and 
C.  became  partners.  C.  had  to  borrow  to  pay  for  his  half,  and  Y. 
with  one  M.  became  his  sureties,  and  Y.  gave  M.  a  mortgage  on 
the  partnership  property  to  secure  him  as  surety  and  the  mortgage 
was  foreclosed.  Plaintiffs  brought  an  action,  claiming  that  as  J.  & 
Y.'s  assets  or  Y.'s  assets  went  to  pay  C.'s  debt,  he  should  have  a 
claim  against  C.  This  was  refused,  the  court  holding  that  joint 
creditors  have  no  lien  and  can  work  out  their  priority  only  through 
a  partner,  and  if  the  partners  make  an  absolute  sale  of  the  property, 
the  creditors  are  cut  off. 

The  partners  becoming  incorporated  and  transferring  the  part- 
nership property  to  the  corporation,  taking  stock  in  it  in  their 
individual  names  in  exchange,  is  not  jjer  se  fraudulent  as  to  the 
joint  creditors,* 

or  for  the  purpose  of  enabling  the  S81 ;  Chalfant  v.   Grant,   3  id.    118; 

partners  to  claim  homesteads,  it  is  Mortley  v.  Flanagan,  3S  Oh.  St.  401. 
fraudulent  as  against  the  joint  cred-       i  Persse  &  Brooks  Paper  Works  v. 

itors.     Re  Sauthoflf,   8  Biss.    35;   16  Willett,  1  Robt.  131 ;  19  Abb.  Pr.  416; 

Bankr.   Reg.    181 ;    5  Am.  Law  Rec.  Beitman     v.     McKenzie,     11     Ohio 

173;  Commercial  &  Sav.  Bk.  v.  Cor-  Weekly  Law  Bulletin,  272;  and  see 

bett,   5  Sawy.    543;    Re  Melvin,    17  the   facts  in  Case  v.  Beauregard,  99 

Bankr.  Reg.  543 ;  Bishop  u.  Hubbard,  U.    S.    119,  and    see    Francklyn  v, 

23  Cal.  514;  Gill  v.  Lattimore,  9  Lea,  Sprague,  121  U.  S.  215,  228. 

583 


g  5G2.  CONDUCT  OF  THE  BUSINESS. 

§  561.  Dividing  up  the  assets.— So  if  the  partners  divide 
up  the  property  between  themselves,  the  same  rule  applies. 
This  is  in  effect  a  sale  by  each  to  the  other,  the  release  of  the 
separate  interests  being  the  consideration;  neither  has  a  lien 
on  the  share  of  the  other,  and  the  joint  creditors  therefore 
can  obtain  none.^ 

A  sale  or  division  of  property  could  not  become  unlawful 
as  to  individual  creditors  of  one  of  them,  for  the  other  part- 
ners in  effect  acquire  no  property  in  his  share,  but  only 
separate  their  own  from  his.^ 

§  562.  Authorities  restricting  the  right  to  sell. —  Many 
cases  hold  that  if  the  firm  is  insolvent,  or  on  the  eve  of  in- 
solvency, and  both  partners  are  also  insolvent,  a  purchase 
by  one  partner  of  the  interest  of  the  other  in  consideration 
of  the  formers  assumption  of  the  debts  is  upon  a  considera- 
tion which  is  of  no  value  whatever,  and,  according  to  the 
English  and  many  American  authorities,  no  equivalent  hav- 
ing been  given,  the  transfer  is  in  effect  voluntary,  and  its 
only  effect,  if  sustained,  would  be  to  hinder  partnership 
creditors,  and  hence  is  deemed  ineffectual  to  convert  the 
joint  property  into  separate  property  as  against  the  cred- 
itors. 

1  Lingen  y.  Simpson,  1  Sim,  &  Stu.  Parks,    3    Humph.    95;    Holmes    v. 

600;  Crane  u  Morrison,  4  Sawy.  138;  Hawes,    8    Ired,    (N.    Ca.)    Eq.    21; 

17  Bankr.  Reg.  393;  Moline   Wagon  McKinney  v.    Baker,  9   Oregon,    74 

Co,  V.  Rummell,  14  Fed.  Rep,  155;  12  (they  divided  assets,  each  assuming 

id.  658;  2  McCrary,  307  (reversed  in  certain  debts  and  one  assigning  his 

part  as  Huiskamp  v.  Moline  Wagon  share  for  the  benefit  of  his  creditors) ; 

Co.   121    U.    S.    310);  Robertson  v.  Wiesenf eld  t;.  Stevens,  15  S.  Ca.  554; 

Baker,  11   Fla.  192;  Marlin  v.  Kirk-  Burtus  v.  Tisdall,  4  Barb.  571;  and' 

sey,  23  Ga.  164;  Poole  v.  Seney,  66  see  §282.     Contra,  Ransom  v.  Van 

Iowa,  502,    they    divided  the   prop-  Deventer,    41    Barb.  307;  Schiele  v. 

erty  and   each  mortgaged  his  share  Healy,  61  How,  Pr.  73 ;  Wilkinson  v. 

for  individual  debts,  held  not  fraud-  Yale,  6  McLean,  16, 
ulent  perse;  Jones  v.  Lusk,  2   Met,        2 Atkins   v.  Saxton,  77  N.  Y.  195; 

(Ky.)   356;  Mechanics' Bank   u  Hil-  Weaver  v.    Ashcroft,   50  Tex.    427; 

dreth,  9  Cush.  356;  Giddings  v.  Pal-  Darland  v.  Rosencrans,  56  Iowa,  122; 

mer,  107  Mass.  269;  Crosby  v.  Nichols,  Griffin  v.  Cranston,  10  Bosw.  1 ;  1  id. 

8   Bosw.    450;    Sigler  v.    Knox   Co.  281. 
Bank,  8   Oh,    St.  511;  Whitmore  v. 

584 


CONVERSION  OF  JOINT  INTO  SEPARATE  PROPERTY.    S  56S 


OUtt. 


In  Ex  parte  Mayou,  4  DeG.  J.  &  S.  mi\  11  Jur.  N.  S.  433;  12  L. 
T.  N.  S.  629,  the  partners  were  in  financial  straits  and  were  being 
sued,  and  having  failed  to  obtain  a  renewal  of  accommodation,  de- 
termined to  dissolve,  and  one  conveyed  all  his  interest  to  the  other, 
the  latter  expressing  in  the  deed  his  intention  of  continuing  the 
business  and  covenanting  to  pay  all  the  debts  within  three  years 
and  to  indemnif}^  the  other  against  them;  but  as  both  partners  were 
insolvent  the  covenant  was  worthless,  and  hence  was  not  a  consid- 
eration. A  few  days  afterwards  a  petition  in  bankruptcy  was  filed 
against  them  and  the  deed  was  attacked  as  in  fraud  of  creditors. 
The  transfer  Avas  held  fraudulent  under  the  bankrupt  law,  and 
under  the  statute  as  to  voluntary  conveyances,  "because  it  had  for 
its  immediate  and  necessary  object  and  consequence  the  alteration  of 
the  property  in  such  a  manner  as  would  defeat  or  delay  the  joint 
creditors." ' 

§  563.  Examples. —  In  Sanderson  v.  Stockdale,  11  Md.  563,  the 
court  stating  that  partnership  creditors  have  no  greater  rights  or 
lien  than  do  separate  creditors  in  individual  property,  and  that  the 
joint  property  may  therefore  be  bona  fide  assigned  to  one  or  more 
partners,  say  that  a  fraudulent  assignment  by  an  insolvent  firm  to  de- 
fraud creditors  will  be  relieved  against,  holding  that  on  bill  by  a  part- 
nership creditor  charging  that  the  firm  is  insolvent,  that  the  effects 

1  In  re  Caton,  24  Up.  Can.  C.  P.  308,  Caldwell  v.  Bloomington  Mfg.  Co.  17 

following    above     case;     Ex   parte  id.  489;  Mooi*ehead  y.  Adams  (Neb.), 

Walker,  4  DeG.  F.  &  J.  509 ;  Auder-  26  N.  W.  Rep.  243 ;  Tenney  v.  John- 

Bon  V.  Maltby,  2  Ves.  Jr.  244;  Bulliter  son,  48  N.  H.  144;  Caldwell  v.  Scott, 

V.  Young.  6  El.  &  B.  40;  Ex  parte  54  id.  414;  Burtus  v.  Tisdall,  4  Barb. 

Shouse,  Crabbe,  482;  Collins  v.  Hood,  571 ;  Ransom  v.  Van  Devonter,  41  id. 

4  McLean,  186 ;  Wilkinson  v.  Yale^  6  307 ;  Heye  v.  BoUes,  2  Daly,  231 ;  83 

id.   16;  In  re  Waite,   1  Low.  207;  1  How.  Pr.  266;  Menagh  v.  Whitwell, 

Bankr.  Reg.  373;  In  re  Cook,  3  Biss.  52  N.  Y.  146,  163;  11  Am.  Rep.    683 

122;  Re  Long,  7  Ben.   141 ;  9  Bankr.  (but  in  Stanton  v.  Westover,  4  N.  E. 

Reg.  227;  Re  Tomes,  19  Bankr.  Reg.  Rep.  529,  the  transfer  was  sustained, 

36 ;  Johnston  v.  Straus,  26  Fed.  Rep.  both    parties    believing    themselves 

57;  Conroy  v.   Woods,   13  Cal.  626;  solvent  and  the  buyer's  failure  not 

Saloy  V.  Albrecht,   17  La.   Ann.  75;  having  occurred   until   five  months 

Sanderson  v.  Stockdale,   11  Md.  563;  afterwards,  during  all  of  which  time 

Flack  V.  Charron,  29  id.  311;  Phillips  the  property  could  have  been  levied 

V.   Ames,    5  Allen,    183;    Phelps   v.  on  and  he  was  ready  to  pay  debts); 

McNeeiy,   66  Mo.    554;  27  Am.   Rep.  Weaver  v.  Ashcroft,  50Tex.  427;  Da- 

378;  Roop  v.  Herron,  15  Neb.  73,  and  vid  v.  Birchard,  53  Wis.  492,  497. 
comments  on  this  case  in  17  id.  489 ; 

585 


§  563.  CONDUCT  OF  THE  BUSINESS. 

hare  been  and  are  being  misapplied  and  appropriated  to  the  private 
purposes  of  individual  partners,  by  wliicli  the  creditors  are  hindered 
and  defrauded,  that  a  dissolution  by  the  retirement  of  two  partners 
was  in  furtherance  of  the  scheme  and  irreparable  damage  is  threat- 
ened; an  injunction  will  be  granted  to  prevent  the  transfer  of  all 
partnership  effects,  including  those  in  the  possession  of  any  indi- 
vidual partner  and  those  belonging  to  the  late  firm  and  conveyed 
by  it  to  any  partner  by  any  act  not  bonafide^  and  a  receiver  will  be 
appointed  if  necessary'.' 

In  Phelps  V.  McNeely,  m  Mo.  554  (27  Am.  Rep.  378),  where  the 
firm  was  insolvent  and  one  partner  sold  out  to  the  other  and  re- 
tired, the  latter  agreeing  to  pay  the  debts,  and  afterwards  mort- 
gaged all  the  assets  for  an  individual  debt  incurred  before  dissolution, 
the  dissolution  and  mortgage  was  held  a  nullity  as  against  the  prior 
claims  of  joint  creditors.  This  case  follows  Tenney  v.  Johnson,  43 
N.  H.  1-14,^  but  it -must  be  remembered  that  in  New  Hampshire  the 
partnership  creditors'  equity  is  inherent  in  themselves  and  not  en- 
tirely dependent  upon  the  equity  of  the  partners.^ 

In  Marsh  v.  Bennett,  5  McLean,  117,  the  retiring  partner  as- 
signed all  his  interest  to  his  copartner,  "  for  the  purpose  of  paying 
ofif  the  creditors,"  and  the  vendee's  subsequent  assignment  for  cred- 
itors with  preferences  was  called  a  violation  of  the  trust.  In  this 
action  the  firm  was  much  embarrassed  at  the  time  of  the  sale,  and 
eight  months  afterwards  the  continuing  partner  went  into  bank- 
ruptcy, and  on  distribution  of  the  assets  the  sale  Avas  held  void,  as 
depriving  the  creditors  of  their  priority  over  the  separate  creditors 
of  the  bankrupt. 

In  Roop  V.  Herron,  15  Neb.  73,^  a  retirement  by  one  partner  and 
conveyance  by  him  of  all  his  interest  to  the  other,  who  agreed  to 
pay  the  debts,  but  turned  over  $500  worth  of  assets  in  payment  of 
a  debt  of  $250  to  his  separate  creditor,  all  the  parties  knowing  the 

1 S.  p.  Johnston  v.  Straus,  26  Fed.  take  all  the  assets  and  pay  all  the 

Rep.  57 :  but  Coakley  v.  Weil,  47  Md.  debts,  and  thereupon    his    separate 

277,  recognizes  an  assignment  for  the  creditors  levied  attachraeiits,  but  the 

equal   benefit  of  joint  and  separate  partnership  creditors  were   neld   to 

creditors.  have  superior  rights.                           * 

2  Tenney  v.    Johnson   was    where  Sg.  p.  Collins  v.  Hood,  4  McLean, 

partners  submitted    their  disagree-  186. 

ments  to  arbitration  and  an  award  ^  And  comments  on  it  in  Caldwell 

was  made  that  one  partner  should  v.  Bloomington  Mfg.  Co.  17  Nob.  489. 

586 


CONVERSION  OF  JOINT  INTO  SEPARATE  PROPERTY.  §  563. 

firm  to  be  insolvent,  was  held  void  as  against  tlie  joint  creditors, 
who  attached  subsequently,  the  court  saying  that  a  partner  in  an 
insolvent  firm  could  not  divest  the  property  of  its  distinctive  char- 
acter by  simply  assigning  his  interest  to  the  copartner. 

In  Ex  parte  Morley,  8  Ch.  App.  1026,  by  the  articles  of  partnership 
between  T.  White,  Sr.,  and  his  sons,  on  the  death  of  T.  White,  Sr., 
all  the  property  and  business  was  to  belong  j^to  his  representatives, 
who  were  to  continue  the  business,  paying  the  junior  partners  cer- 
tain amounts  for  their  interests,  and  the  firm  was  insolvent  at  the 
death  of  T.  White,  Sr.,  and  one  son,  who  was  the  executor,  con- 
tinued the  business  and  bought  more  assets,  it  was  held  that  the 
original  assets  which  remained  in  specie  continued  joint  property; 
that  the  deed  did  not  change  the  right  of  the  surviving  partners, 
they  being  liable  for  the  debts,  to  insist  on  the  assets  being  applied 
to  them.  Perhaps  in  such  a  case  the  provision  of  the  articles  should 
be  regarded  as  impliedly  conditioned  on  insolvency  of  the  firm.^ 

In  Re  Walker,  6  Ont.  App.  169,  the  business  was  continued  by 
one  of  the  partners  who  assumed  the  liabilities,  and  original  assets 
remaining  in  specie  were  held  primarily  applicable  to  the  joint 
debts.  The  case  follows  Ex  parte  Morley,  supra^  but  the  terms  ot 
contract  between  the  outgoing  and  continuing  partners  are  not 
given. 

In  Bank  v.  Smith,  26  W.  Va.  541,  the  partners  of  an  insolvent 
firm  tried  to  convey  away  partnership  real  estate  to  avoid  the  judg- 
ment of  debts,  and  the  conveyances  were  set  aside  and  the  laud  sold 
on  application  of  the  creditors.  The  court  will  grant  the  relief  with- 
out decreeing  a  dissolution  or  settling  the  accounts  of  the  partners 
inter  se. 

A  sale  of  his  interest  to  his  copartner  by  an  insolvent  copartner 
is  void  as  in  fraud  of  the  bankrupt  act,  if  within  the  forbidden 
period.' 

A  conveyance  by  an  insolvent  firm  to  one  partner  in  fraud  of  the 
bankrupt  law  can  be  assented  to  by  the  joint  creditors,  Avho  can 
thus  come  upon  the  separate  estate  pari  passu  with  the  separate 
creditors.' 

1  See  In  re  Simpson,  9  Ch.  App.  471 ;  Crampton  v.  Jerowski,  2  Fed. 
573;  Ex  parte  Dear,  1  Ch.  D.  519;  Rep.  489;  Re  Johnson,  3  Lowell, 
Ex  parte  Manchester  Bank,   13  id.    129. 

917;  Ex  parte  Butcher,  13  id.  46"i.  3i?eJolmson,  3  Low.  129;  i2e  Long, 

2  Wilson  V.  Greenwood,  1   Swanst.    7  Ben.  141  ;  9  Bankr.  Reg.  227. 

587 


§  664.  CONDUCT  OF  THE  BUSINESS. 

§  564.  Withdrawing  funds  if  a  gift  is  fraudulent. —  If  the 
firm  is  insolvent,  a  withdrawal  of  the  amount  of  funds  or 
of  his  original  capital  by  one  partner,  or  otherwise  drawing 
from  the  joint  fund  an  amount  in  excess  of  what  he  is  en- 
titled to,  knowing  that  tlie  joint  creditors  will  nou  have  suf- 
ficient, whether  this  is  by  gratuitous  permission  of  his 
copartners  or  under  a  right  to  do  so  given  by  the  articles  of 
partnership,  is,  as  a  matter  of  course,  a  conveyance  in  fraud 
of  the  rights  of  partnership  creditors,  and  doubtless  also  of 
the  separate  creditors  of  the  other  partners,  for  it  is  in  ef- 
fect a  gift;  and  if  the  court  can  get  possession  of  the  fund 
before  the  retiring  partner  has  collected  it,  they  will  treat  it 
as  partnershi])  assets. 

In  In  re  Kemptuer,  L.  R.  8  Eq.  286,  K.,  in  the  firm  o£  K.  &  Co. 
of  Yolcoliama,  Japan,  being  about  to  go  to  England,  sought  to 
withdraw  £4,000,  standing  to  his  credit  on  the  books,  which  under 
the  articles  he  was  entitled  to  do,  and  bills  for  the  amount  drawn 
to  the  firm's  order  by  Japan  banks  on  London  banks  were  purchased 
with  partnership  moneys  and  delivered  to  him.  K.  died  on  the  pas- 
sage over,  and  the  surviving  partner  having  assigned  in  bankruptcy, 
their  trustees  and  K."s  executors  both  claimed  the  bills.  Sir  R. 
Malins,  V.  C,  held  that,  whether  fraudulently  intended  or  not, 
made  no  difference;  the  firm  being  deeply  insolvent,  K.  must  bo 
taken  to  know  this,  and  cannot  treat  his  firm  as  solvent.  And  in 
such  a  case  if  any  accident  has  prevented  the  partner  from  possessing 
himself  of  the  assets  of  the  creditors,  the  court  is  bound  to  exercise 
all  its  power  to  prevent  a  transaction  so  grossly  improper  as  this.' 

^  Re  Sauthoff,  16  Bankr.  Reg.  181;  was  indebted  for  buildings  upon  it. 
8  Biss.  35;  5  Am.  Law  Rec.  173,  vised  partnership  funds  to  pay  tliese 
where  on  dissolution  the  partners  debts ;  this  was  held  fraudulent  as  to 
divided  the  assets,  and  one  invested  creditors.  Edwards  v.  Entwisle,  3 
his  in  a  homestead;  this  was  held  Mackey  (D.  C),  43,  61,  here  a  partner 
subject  to  partnership  debts.  Re  bought  property  in  his  wife's  name 
Melvin,  17  Bankr.  Reg.  543,  here  the  with  firm  funds,  "thus  compelling 
partners  sold  some  of  the  assets  and  partnership  creditors  to  pay  contri- 
divided  the  proceeds  when  insolvent,  bution  to  separate  creditors,"  and 
investing  tliem  in  property  claimed  Cartter,  C.  J.,  said  that  the  part- 
as  exempt.  Phipps  v.  Sedgwick,  95  nership  creditors  could  recover. 
U.  S.  3,  here  one  partner  who  had  Ransom  v.  Van  Deventer,  41  Barb, 
bought  property   for  his  wife,  and  307,  here  they  divided  up  the  assets, 

588 


CONVERSION  OF  JOINT  INTO  SEPAPYTE  PROPERTY.     §  5(J5. 

Drawing  reasonabl}'  small  amounts  for  individual  expenses  and 
obligations,  although  the  firm  is  in  some  difficulty,  but  with  rea- 
sonable hope  of  extricating  it,  is  not  fraudulent  so  as  to  sustain  at- 
tachment.^ In  Turner  v.  Jaycox,  40  N.  Y.  470,  475,  part  of  the 
contract  of  partnership  was  that,  if  either  of  the  partners,  who 
were  brothers,  owed  any  debt,  it  was  to  be  paid  out  of  the  common 
stock,  and  a  note  of  the  firm  was  given  to  pay  their  board  bills,  and 
this  was  held  to  be  a  partnership  debt  which  could  be  preferred 
in  an  assignment  for  creditors. 

§565.  Paying  a  debt  of  one  partner. —  A  not  uncommon 
use  of  the  right  of  absolute  disposition  of  partnership  prop- 
erty is  to  employ  firm  funds  to  pay  the  separate  debt  of  a 
single  partner,  or  mortgage  the  joint  property  to  secure  it. 
These  are  not  cases  of  the  attempt  of  a  singl4  partner  to 
pay  his  debt  with  joint  funds  which  are  elsewhere  exam- 
ined, but  of  the  power  of  all  the  partners,  or  of  one  by  con- 
sent of  all,  to  so  appropriate  their  property,  and  they  have 
the  same  right  to  do  so  that  an  individual  has  to  give  away 
his  property;  that  is,  an  unlimited  power  of  disposition  ex- 
cept as  controlled  by  statutes  against  voluntary  conveyances 
in  fraud  of  creditors  and  the  similar  provisions  of  the  bank- 
rupt law.  2 

and  each  used  his  part  to  pay  2Huiskamp  v.  Moline  Wagon  Co. 
separate  creditors ;  held  a  fraud  on  121  U.  S.  310;  Jewett  v.  Meech,  101 
the  joint  creditors  and  void.  Greene  Ind.  289;  Fisher  v.  Syfers,  109  Ind. 
V.  Ferrie,  1  Desaus.  (S.  Ca.)  164,  here  514;  Woodward  v.  Horst,  10  Iowa, 
tliey  divided  up  the  supposed  profits,  120;  Fargo  v.  Adams,  45  id.  491; 
and  one  invested  his  share  in  real  George  v.  Wamsley,  64  id.  175 ;  Jones 
estate;  this  was  ordered  resold  to  pay  v.  Lusk,  2  Met.  (Ky.)  856;  Schmid- 
a  creditor  of  the  firm ;  the  court  held  lapp  v.  Currie,  55  Miss.  597  (30  Am. 
that  tlieir  want  of  knowledge  of  Dec.  530) ;  Whitney  v.  Dean,  5  N.  H. 
their  insolvency  was  immaterial.  249 ;  Nafl  Bank  t;.  Sprague,  20  N.  J. 
See,  also,  Richards  v.  Manson,  101  Eq.  13  (reversed  on  other  points,  21 
Mass.  483,  485  (dictum).  Contra,  id.  530);  Potts  u.  Blackwell,  3  Jones 
Allen  V.  Center  Valley  Co.  21  Conn.  (N.  Ca.),  Eq.  449;  4  id.  58;  Anderson 
130,  here  they  sold  some  of  the  as-  v.  Norton,  15  Lea,  14,  32;  DeCaussey 
sets  and  divided  the  proceeds,  and  it  v.  Bailly,  57  Tex.  665 ;  Churchill  v. 
was  held  to  be  a  valid  conversion  of  Bowman,  39  Vt.  518;  Camp  v.  Page, 
joint  into  separate  property.  42  Vt.  739.  See  the  criticisms  upon 
1  McKinney  v.  Rosenband,  23  Fed.  Jones  v.  Lusk,  Schmidlapp  v.  Cur- 
Rep.  785.  rie,  and  Whitney  v.  Dean,  and  other 

5S» 


§  665.  CONDUCT  OF  THE  BUSINESS. 

In  In  re  Kahley,  2  Biss.  383,  the  partners  gave  their  notes  and 
mortgage  to  a  person  for  an  interest  in  their  business  sold  by  the 
payee  to  one  partner,  and  for  money  consideration  put  into  the 
business  for  another  partner.  The  bankruptc}^  proceedings  were 
begun  eight  months  afterwards  and  the  mortgage  was  sustained. 

In  Fargo  v.  Adams,  45  Iowa,  491,  after  a  mortgage  had  been 
given  by  one  partner  on  the  whole  partnership  stock  to  secure  his 
individual  debt,  his  copartner  released  to  him  all  his  interest  in  the 
stock.  The  mortgage  was  held  to  become  valid  on  the  entire  stock 
and  to  be  superior  to  a  later  attachment  for  a  joint  debt. 

In  Woodward  v.  Horst,  10  Iowa,  120,  H.  &  S.  furnished  goods  to 
defendant  in  payment  of  his  claim  against  S.  H.  &  S.  afterward 
dissolved,  S.  conveying  his  interest  in  the  firm  to  H.,  who  subse- 
quently assigned  for  benefit  of  creditors.  The  assignee  cannot  re- 
cover the  value  of  the  goods  from  defendant. 

Where  B.,  of  D.  &  B.,  a  firm,  died  indebted  on  individual  account 
to  C,  and  his  surviving  partner,  B.,  supposing  the  firm  to  be  solvent, 
paid  C.  with  partnership  assets  and  took  a  receipt  from  D.'s  admin- 
istratrix, and  she  took  one  from  C,  B.'s  remedy  to  recover  back  the 
money  is  against  D.'s  administratrix  and  not  against  C 

In  Potts  V.  Blackwell,  3  Jones,  Eq.  449  (and  on  rehearing,  4  id. 
58),  one  partner  conveyed  to  the  other  by  mortgage  all  the  effects 
for  alleged  debts  due  between  them,  and  the  mortgagee  assigned  the 
mortgage  and  effects  to  bona  fide  creditors  of  his.  This  was  held 
valid  as  against  creditors  of  the  firm. 

Anderson  v.  Norton,  15  Lea,  14,  held  that  a  note  by  a  partner  in 
his  own  name  for  his  individual  debt,  with  the  other  partners  as 
sureties,  and  secured  by  a  mortgage,  signed  by  all,  upon  real  estate 
of  the  firm,  created  a  valid  lien  prior  to  the  claims  of  joint  cred- 
itors. 

Churchill  v.  Bowman,  39  Vt.  518,  that  the  offset  of  a  claim  due 
from  one  partner  against  a  claim  due  to  the  firm,  if  consented  to 
by  all  the  partners,  was  binding;  but  here  there  were  no  rights  of 
joint  creditors  involved." 

cases,  in  §  568.    In  a  court  of  law,  an  i  Bailey  v.  Clark,  6  Pick.  372, 

assignment  by  partners  of  choses  in  2  And  so  in  Camp  v.  Page,  43  Vt. 

action  to  the  separate  creditor  of  one  739,  where  the  same  agreement  was 

will  convey  a  valid  title  as  against  made  and  the  contest  was  between 

creditors:  their  remedy  is  in  equity,  the  partners. 
Morris  v.  Vernon,  8  Rich.  L.  13. 

590 


CONVERSION  OF  JOINT  INTO  SEPARxVTE  PROPERTY.     §  oGG. 

In  Saunders  v.  Reilly,  105  N.  Y,  12,  a  judgment  against  all  tlie 
partners  on  a  joint  debt  owed  by  tliem  as  individuals,  not  a  part- 
nership debt,  was  levied  upon  the  partnership  property,  which  was 
sold,  and  the  buyer  was  held  to  acquire  a  good  title,  for  general 
creditors  have  no  lien,  and  can  only  acquire  a  lien  when  the  part- 
ners have  preserved  their  equity,  and  cannot  therefore  forbid  a  sale 
by  the  sheriff  when  they  have  no  judgment  or  execution.* 

§  566.  Same  when  a  fraud  on  creditors. —  On  the  other 
hand,  however,  a  partnership  has  no  greater  right  to  make 
voluntary  conveyances  of  its  property,  or,  what  is  the  same 
thing,  use  its  property  to  pay  or  secure  debts  not  its  own, 
when  it  is  insolvent,  or  when  such  payment  will  leave  it  in- 
solvent, or  hinder  or  delay  existing  creditors,  than  an  indi- 
vidual of  his  separate  property.  A  partner  using  his  private 
property  to  pay  a  joint  debt  is  paying  his  own  debt,  though 
in  so  doing  he  may  prejudice  his  separate  creditors;  but  a 
partnership  paying  the  private  debt  of  one  of  its  members 
is  paying  what  it  is  not  liable  for  in  law,  equity  or  morals, 
and  is  in  effect  giving  away  its  property,  and  such  convey- 
ance, no  bona  fide  rights  intervening,  is  fraudulent  and  void 
as  to  existing  creditors  if  they  are  prejudiced  thereby,  as 
well  as  to  the  separate  creditors  of  the  other  partner  whose 
individual  interest  in  the  firm  is  thus  given  away.^ 

1  See,  also,  Marks  v.  Hill,  15  Gratt.  437;  Rhodes  v.  Williams,  12  Nev.  20; 
400,  cited  in  §  567.  French  v.  Lovejoy,    12  N.    H.   458; 

2  Anderson  v.  Maltby,  2  Ves.  Jr.  Person  v.  Monroe,  21  id.  463;  Elliot 
244;  Ex  parte  Snowball,  L.  R.  7  Ch.  v.  Stevens,  38  id.  311 ;  Kidder  ?7.  Page, 
App.  534;  Brecher  v.  Fox,  I  Fed.  48  id.  380;  Farwell  v.  Metcalf,  68  id. 
Rep.  273;  Re  Lane,  2  Low.  333;  10  276;  Blackwellu.  Rankin,  7  N.  J.  Eq. 
Bankr.  Reg.  135;  Re  Sauthoff,  16  152,  165;  National  Bank  v.  Sprague, 
Bankr.  Reg.  316;  Goodbarv.  Gary,  4  21  id.  530,  544;  Clements  v.  Jessup, 
Woods,  603;  16  Fed.  Rep.  316;  Ed-  36  id.  569,  573;  Kirby  v.  Schoon- 
wards  v.  Entwisle,  2  Mackey  (D,  maker,  3  Barb.  Ch.  46,  51;  Geortner 
Col.),  43,  61 ;  Keith  v.  Fink,  47  111.  v.  Cana joharie,  2  Barb.  625 ;  Burtus 
272;  Patterson  r.  Seaton,  70  Iowa,  r.  Tisdall,  4  id.  571 ;  Dart  v.  Farmers' . 
689;Saoly  u.  Albrecht,  17  La.  Ann.  75;  Bank,  27  id.  337;  Cox  v.  Piatt,  33  id. 
Carter  v.  Galloway,  36  id.  473 ;  Flack  126 ;  19  How.  Pr.  131 ;  Knauth  v.  Bas- 
V.  Charron,  29  Md.  311;  Phillips  v.  sett,  34  Barb.  31;  Walsh  v.  Kelly,  43 
Ames,  5  Allen,  183 ;  Heineman  v.  id.  98;  27  How.  Pr.  359 ;  Lester  v.  Pol- 
Hart,  55  Mich.  64;  Cron  v.  Cron,  56  lock,  8  Robt.  691;  28  How.  Pr.  488; 
id.    8 ;  Kitchen   v.  Reinsky,  42  Mo.  O'Neil    v,  Salmon,  25  How.  Pr.  246 ; 

591 


§  50  7.  CONDUCT  OF  THE  BUSINESS. 

And  an  assignment  for  benefit  of  creditors  by  a  firm  preferring 
individual  creditors  is  fraudulent  at  least  to  that  extent.' 

And  the  same  principle  governs  the  appropriation  of  part- 
nership funds  to  such  individual  purposes  as  place  it  out  of 
the  reach  of  creditors,  such  as  improving  the  homestead  of  a 
partner,  or  his  wife's  property,  or  to  purchase  property  in 
the  name  of  his  wife,  if  the  firm  is  insolvent.^ 

Where,  however,  a  firm  borrowed  money  to  pay  the  private  debt 
of  one  partner,  as  the  lender  well  knew,  but  did  not  know  that  the 
firm  was  insolvent,  and  gave  the  lender  a  chattel  mortgage  to  se- 
cure the  loan,  the  chattel  mortgage  is  valid  against  the  firm's  assignee 
for  the  benefit  of  creditors.^ 

An  appropriation  of  firm  assets  to  pay  the  debt  of  one  partner 
is  invalid  only  against  existing  creditors,  and  is  valid  against  sub- 
sequent liabilities  of  the  firm.* 

In  George  v.  Wamsle}^,  6i  Iowa,  175,  the  firm  paid  a  debt  of  one 
partner,  in  consideration  of  his  continuing  to  contribute  peculiar 
skill  to  the  firm,  instead  of  withdrawing  as  he  desired.  The  consid  • 
eration  was  held  sufficient  against  a  garnishment,  by  creditors  of 
the  firm,  of  the  money  in  the  hands  of  the  separate  creditor. 

§  567.  Assumption  of  deht  on  moral  consideration. —  If, 

however,  the  debt,  although  contracted  by  a  single  partner, 
be  one  of  which  the  firm  got  the  benefit,  and  equitably 
should  pay,  a  payment  or  securing  of  such  debt  by  the  firm 

Ruhl  V.  Phillips,  2  Daly,  45 ;  Heye  v.  cure  it,  will  not  be  effectual  against 
Bolles,   2  id.   231;  33  How.  Pr.  266;  existing  partnership  creditors.     Kid- 
Wilson  V.  Robertson,  21  N.  Y.  587;  der  r.  Pago,  48  N.  H.  380. 
Hurlbert  y.   Dean,  2   Keyes,    97;   2  i  Jackson  u.  Cornell,   1  Sandf.  Ch. 
Abb.  App.  428 ;  Menagh  V.  Whitwell,  348;    Schiele  v.  Healy,  61  How.  Pr. 
52    N.  Y.    140    (11    Am.    Rep.    683);  73;    Vernon  v.  Upson,  60  Wis.  418; 
Walker  v.  Marine  Nat'l  B'k  of  Erie,  Willis  v.  Bremner,  id.  622. 
08  Pa.  St.  574;  Henderson  v.  Haddon,  -'pjace  v.    Sedgwick,    95  U.  S.  3; 
12  Rich.  Eq.  393;   Snyder  v.  Luns-  Rhodes  v.  Williams,  12  Nev.  20;  Re 
ford,   9  W.  Va.    223,   228;  Keith  v.  Sauthoff,   16  Bankr.   Reg.    181;    Ed- 
Armstrong,  65  Wis.  225.  And  an  ini-  wards  v.  Entwisle,  2  Mackey  (D.  C), 
proper  increasing  of  claims  is  as  ille-  43,  61;   Bishop  v.  Hubbird,  23  Cal, 
gal  as  an  improper  diminution  of  514;  Stegall  z'.  Coney,  49  Mo.  761. 
assets:  hence,  signing  the  firm  name  3  Assignment  of  Stewart,  62  Iowa, 
as  surety  for  the  existing  debt  of  one  614. 

partner,  or  giving  a  mortgage  to  se-  *  Farwell  v.  Metcalf,  63  N.  H.  276. 

592 


CONVERSION  OF  JOINT  INTO  SEPARATE  PROPERTY.     §  5G8. 

has  been  held  by  some  highly  respectable  authorities  not  to 
be  in  fraud  of  creditors,  though  the  principle  on  which  this 
rests  seems  rather  nebulous.' 

In  Black  well  v.  Rankin,  7  N.  J.  Eq.  152,  154,  a  confession  of 
judgment  by  a  firm  of  R.  &  W.  L.,  for  a  debt  of  an  antecedent  firm 
of  R.  &  W.  L.,  was  held  to  be  the  same  as  a  confession  of  judgment 
for  the  separate  debt  of  one  partner,  and  fraudulent:  and  in  Hilli- 
ker  V.  Francisco,  65  Mo.  598,  it  was  held  that  a  partner  could  not 
appropriate  the  assets  of  the  firm  to  pay  debts  due  from  the  two 
partners  as  individuals  and  not  as  a  firm. 

It  may  be  stated  generally  that  if  funds  are  taken  from  one  firm 
and  put  into  another,  or  where  a  new  firm  succeeds  a  former  one, 
and  the  new  firm  has  its  own  creditors,  they  have  priority  in  dis- 
tribution of  the  assets  over  creditors  of  the  old.^ 

§  568.  Important  cases  which  rest  on  no  principle  what- 
eyer. —  The  following  cases,  which  are  too  important  not  to 
deserve  specific  notice,  are  in  part  contrary  to  the  above 
principle  and  allow  the  partners  to  use  their  property  to  pay 

1  Gwin  V.  Selby,  5  Oh.  St.  96,  where  the  use  of  the  firm,  and  this  was  sus- 
one  partner  made  a  purchase  or  loan  lained.  Walker  v.  Marine  Nat'l  B'k  of 
for  the  firm  on  his  own  credit,  and  Erie,  98  Pa.  St.  574,  where  a  partner, 
his  surety  had  to  pay  the  debt;  S.  P.  after  giving  his  daughter  a  lot,  and" 
Siegel  V.  Chidsey,  28  Pa.  St.  279;  Ha-  promising  her  a  deed  for  it,  sold  the 
ben  V.  Hershaw,  49  Wis.  379,  a  debt  lot  and  put  the  proceeds  into  the  firmj. 
for  supplies  furnished  to  one  partner,  and  the  firm  while  insolvent  gave  a< 
but  consumed  by  all  the  partners,  judgment   note  for  the  debt;  S.    P.. 
who  constituted  one  family.     In  Cof-  Siegel   v.    Chidsey,  28   Pa.    St.    279;- 
fin's  Appeal,  106  Pa.  St,  280,  286,  this  Marks  u.  Hill,  ISGratt.  400,  where  all' 
principle  was  said  to  apply  wliere  a  the  capital  was  borrowed  by  each  in- 
firm assumed  the  debt  of  a  partner,  dividually,  and  the  partners,  finding, 
incurred   in  borrowing    his   agreed  themselves  failing,  agree  that  both 
capital;  Head  v.  Horn,  18  Cal.  211.  debts  shall  be  paid  out  of  the  joint' 
But  the  contrary  was  held  in  Elliot  v.  fund;  s.  P.  Saunders  v.  Reilly,  105  N. 
Stevens,  38  N.  H.  311,  following  Fer-  Y.  13.  18. 

son  V.  Monroe,    21  id.  462,   and    in       2  Coffin  v.  McCullough,  30  Ala.  107 ; 

McNaughton's  Appeal,   101   Pa.    St.  McCauly  v.  McFarlane,  2  Desaus.  (S. 

550.     And  so  in   Rose  v.   Keystone  Ca.)  239;    Menagh  r.    Whitwell,    52 

Shoe  Co.    (Supr.    Ct.    Pa.    1886)    18  N.    Y.    146;  Crane    v.    Morrison,    4 

Weekly  Notes,  565,  a  firm  confessed  Sawy.   138;  17  Bank.  Reg.  393.     See 

judgment  in  favor  of  the  wife  of  a  Lester  u  Pollock,  3Robt.  (N.  Y.)691; 

partner,  from   whom   her  husband  and  §§  555-558. 
borrowed  money,  which  had  gone  to 

Vol.  1  —  38  698 


^ 


§  5G8.  CONDUCT  OF  THE  BUSINESS. 

the  debt  of  one  of  their  number,  leaving  partnership  cred- 
itors unable  to  obtain  payment.  Granting  that  the  partners 
have  the  same  right  of  absolute  disposition  that  an  indi- 
vidual has,  and  that  insolvency  or  inability  to  pay  is  too 
uncertain  a  test  to  mark  the  point  where  they  should  be  de- 
prived of  that  right;  granting  further  that  one  partner  may 
sell  out  his  interest  to  the  other,  who  then  holds  the  assets 
as  his  individual  property  and  can  assign  it  for  the  benefit 
of  creditors  without  distinction  of  class,  letting  the  separate 
creditors  in  pari  passu  with  the  joint  creditors,  or  can  pay 
them  preferentially,  yet  even  here  the  retiring  partner  has 
not  given  away  his  property,  but  has  sold  it  to  his  copart- 
ner and  received  value,  and  in  legal  contemplation  the  value 
he  has  received  can  be  reached  by  creditors,  though  subject 
to  homestead  or  exemption  laws.  But  the  class  of  cases 
below  ought  not  to  have  been  decided  as  belonging  to  the 
above  categories,  for  they  sustain  the  voluntary  use  of  one 
partner's  property  in  the  firm  to  pay  the  separate  debts  of 
the  other  partner  at  the  expense  not  only  of  his  own  sepa- 
rate creditors,  but  of  the  partnership  creditors.  The  state- 
ments that  there  was  no  fraud  and  that  a  fair  price  was 
given  are  but  a  juggle  of  words.  No  price  was  given  to  the 
person  whose  property  was  placed  beyond  the  reach  of  his 
creditors.  As  to  him  it  was  a  gift,  and  not  a  sale,  and,  if 
so,  is  fraudulent  in  law,  independent  of  motive,  and  should 
be  governed  by  the  statutes  as  to  voluntary  conveyances, 
namely,  that  a  gift  by  a  person  in  debt  is  valid  if  he  have 
sufficient  property  left  to  warrant  his  being  generous  before 
he  is  just,  and  if  not,  not.  The  mere  fact  that  no  benefit 
was  reserved  should  not  determine  the  validity  of  tlie  trans- 
action. 

In  Sigler  v.  Knox  County  Bank,  8  Oh.  St.  511,  the  facts,  some- 
what simplified,  are  as  follows:  Wm.  H.  and  S.  A.  Siglcr  were  part- 
ners, having  a  stock  of  goods  which  invoiced  at  full  value  $3,230.94 
W.  H.  Sigler  was  indebted  on  his  private  account  to  his  father, 
Jacob  Sigler,  for  money  loaned  and  as  surety  for  him  for  ovei 
$1,200.  The  firm  was  indebted  to  A.,  H.  &  Co.  for  $1,000  and  tc 
the  Wayne  County  Bank  for  $1,000,  for  both  of  which  debts  Jacob 

594 


CONVERSION  OF  JOINT  INTO  SEPARATE  PROPERTY.     §  608. 

was  surety.  The  firm  also  owed  the  Knox  County  Bank  $500. 
The  two  partners  sold  and  delivered  to  Jacob  their  entire  assets  at 
the  full  value  of  $3,230.94,  to  be  paid  for  by  him  by  paying,  first, 
his  own  claim;  second,  the  firm's  debt  to  A.,  H.  &  Co.;  and,  third, 
the  firm's  debt  to  the  Wayne  County  Bank.  The  Knox  County 
Bank,  having  obtained  judgment  against  the  firm  on  its  debt,  now 
seeks  to  subject  the  assets  in  the  hands  of  Jacob  to  payment.  The 
court  found  that  there  was  no  actual  fraud  in  the  transfer,  and  that 
Jacob,  being  apprehensive  of  the  solvency  of  the  firm,  desired 
merely  to  secure  himself.  The  court  state  the  general  doctrine  that 
creditors  have  no  lien;  that  the  right  to  have  assets  applied  to  debts 
is  a  personal  right  of  the  partners  themselves,  and  that  when  the 
partners  have  parted  with  this  right  the  priority  worked  out  by 
courts  to  the  creditors  is  also  extinguished.  That  the  partners,  by 
unanimous  consent,  can  appropriate  the  assets  to  pay  the  debt  of 
one  of  their  number.  They  deny  that  this  right  of  appropriation 
can  be  exercised  only  while  the  firm  is  actually  solvent  and  carry- 
ing on  its  business,  and  hold  that  mere  insolvency,  no  fraud  inter- 
vening, will  not  deprive  the  partners  of  their  right  to  sell  and 
dispose  of  the  property  as  they  deem  just  and  proper.  That  it 
would  never  do  to  adopt  a  rule  so  uncertain  as  that  the  power  of 
the  partners  over  the  joint  property  is  to  cease  whenever  the  assets 
for  the  time  being  are  insufficient  to  discharge  their  liabilities,  for 
such  a  rule  would  be  productive  of  much  inconvenience,  injustice 
and  uncertainty.  That  the  true  rule  should  be  that  the  power  of 
partners  thus  to  act  ceases  upon  the  issuing  of  a  commission  of 
insolvency,  but  not  from  mere  inability  at  the  time  to  pay  debts; 
and  the  court  reversed  the  decree  of  the  lower  court,  which  had 
awarded  a  recovery  against  Jacob  as  a  trustee  to  the  creditors. 

In  McDonald  v.  Beach,  2  Blackf.  55,  a  somewhat  similar  trans- 
action was  sustained  on  the  same  ground. 

In  Schmidlapp  v.  Currie,  55  Miss.  597  (30  Am.  Rep.  530),  two 
partners  in  the  liquor  business  assented  to  the  transfer  by  one  of 
them  of  the  entire  stock  to  pay  an  individual  debt  of  such  member. 
The  court  sustained  the  transaction  because  joint  creditors  have  no 
lien,  and  the  partners  have  a  right  of  disposition  and  reserved  no 
benefit  to  themselves. 

So  in  Whitney  v.  Dean,  5  N.  H.  249,  two  of  three  partners,  with 
the  assent  of  the  third,  pledged  partnership  property  to  pay  a  note 

595 


§  iG!).  CONDUCT  OF  THE  BUSINESS. 

of*  the  two,  and  the  firm  failed  two  or  three  days  afterwards.     The 
transaction  was  held  valid. 

In  Woodmansie  v.  Holcomb,  34  Kan.  35,  the  entire  stock  was 
sold  to  the  father  of  one  of  the  partners,  the  consideration  consist- 
ing chiefly  in  debts  due  him  from  the  son.  A  refusal  to  charge 
that  a  transfer  of  partnership  property  to  pay  a  separate  creditor 
is  fraudulent  as  to  creditors  if  no  property  is  found  for  them  to 
levy  upon  was  held  properly  refused  because  it  would  include  a 
transfer  by  a  solvent  partnership.  The  court  say  that  by  the  weight 
of  authority,  mere  insolvency,  where  no  actual  fraud  intervenes, 
will  not  deprive  the  partners  of  their  legal  control  and  right  of  dis- 
position, and  if  the  separate  creditor  purchases  from  the  firm  in 
good  faith  and  for  a  fair  price,  such  purchase  is  not  per  se  fraudu- 
lent as  against  separate  creditors. 

In  Schfefifer  v.  Fithian,  17  Ind.  463;  Jones  v.  Lusk,  2  Met.  (Ky.)  356, 
and  Nat'l  Bank  of  the  Metropolis  v.  Sprague,  20  N.  J.  Eq.  13,  both 
partners  were  indebted  as  individuals  to  the  person  to  whom  they 
conveyed  or  mortgaged  property  of  the  firm  to  pay  or  secure  the 
debt  to  the  prejudice  of  partnership  creditors;  but  the  courts  up- 
holding the  transaction  do  not  do  so  upon  the  ground  that  this 
may  have  relieved  the  cases  from  being  the  use  of  the  property  of 
one  man  to  pay  the  debts  of  another,  for  the  relative  interest  of 
each  partner  in  the  firm  is  not  disclosed,  but  the  cases  are  put  upon 
the  ground  of  absolute  right  of  disposition. 

But  in  Day  v.  Wetherby,  29  Wis.  363,  A.  &  B.,  a  firm  indebted 
to  a  bank,  dissolved  and  took  in  C,  forming  a  new  firm,  which  pur- 
chased property  chiefly  with  the  assets  of  the  old  firm,  and  con- 
veyed the  property  to  secure  the  debt  due  the  bank  by  the  old  firm, 
and  this  conveyance  was  held  valid  against  creditors  of  the  new 
firm;  or  if  C.  intended  the  conveyance  to  secure  a  debt  due  from  the 
new  firm,  this  effect  will  not  be  given  to  it  beyond  the  extent  of 
his  interest.     And  see  Fisher  v.  Syfers,  109  Ind.  514. 

§  561).  Conveyances  of  separate  property. —  A  conveyance 
or  application  by  a  partner  of  his  individual  property  to  pay 
a  partnership  debt  is  not  regarded  as  fraudulent  towards  his 
separate  creditors,  for  he  is  merely  making  preferences 
among  his  own  creditors.^  • 

1  Elgin  National  Watch  Co.  v.  Loan  Soc.  v.  Gibb,  21  Cal.  595;  Utley 
Meyer,  30  Fed.  Rep.  659;  Savings  &   v.    Smith,  24  Conn.  290;    Evans  v. 

596 


CONVERSION  OF  JOINT  INIO  SEPARATE  PROPERTY.     §  5G9. 

In  Utley  v.  Smith,  24  Conn.  290,  C,  the  owner  of  a  business,  took 
in  as  partners  two  of  his  principal  creditors,  they  believing  that 
the  profits  would  be  such  as  to  pay  or  secure  their  claims,  and  act- 
ing in  good  faith,  and  this  was  held  not  to  be  a  fraud  on  other 
creditors.  After  dissolution  and  an  assignment  by  C.  for  benefit  of 
creditors,  one  of  the  partners  paid  certain  debts  of  the  firm  out  of 
funds  conveyed  by  C.  to  the  firm.  This  was  held  to  be  a  proper 
application  of  the  funds,  because  they  are  partnership  property. 

In  states  where  the  creditors  of  the  individual  partner 
are  preferred  to  the  joint  creditors  in  the  distribution  of  the 
separate  estate,  an  assignment  by  a  partner  of  his  separate 
property  for  the  benefit  of  or  preferring  his  separate  cred- 
itors is  valid,  ^  and  the  instrument  will  be  construed,  if  pos- 
sible, as  intended  to  avoid  the  appropriation  of  either  kind 
of  property  to  the  other  set  of  creditors,  but  will  devote  each 
to  its  own  class,  even  though  no  distinction  has  been  made 
by  the  assignor;  "^  and  an  assignment  of  the  separate  prop- 
erty for  the  benefit  of  joint  creditors  is  either  void  or  inures 
to  the  separate  creditors.' 

Hawley,  35   Ind.   83;  Hardy  u.  Over-  2  Bank  of  Mobile  v.  Dunn,  67  Ala. 

man,  36  Ind.  549;  Talbot  v.  Pierce,  881;  Murrill  y.  Neill,  8  How.  (U.  S.) 

14  B.  Mon.  158;  Newman  v.  Bagley,  414;  Eyre  v.  Beebe,  28  How.  Pr.  383; 

16  Pick.  570;  Kirby  u.  Schoonmaker,  Friend  v.  Michaelis,  15  Abb.  N.  Cas. 

8  Barb.  Ch.  46,  50;  Crook, r.  Rinds-  354;  Crook  v.  Rindskopf,  105  N.  Y. 
kopf,  105  N.  Y.  476  (rev.  s.  C.  34  Hun,  476 ;  Andress  v.  Miller,  15  Pa.  St. 
457);  Auburn  Exchange  Bank  v.  316;  McCullough  v.  Somnierville,  8 
Fitch,  48  Barb.  344 ;  Evans  v.  Howell,  Leigh,  415. 

84  N.   Ca.  460;    Gadsden  v.  Carson,  sHolton   v.    Holton,  40  N.  H.  77 

9  Rich.  Eq.  252 ;  Gallagher's  Appeal  Jackson  v.  Cornell,  1  Sandf.  Ch.  348 
(Pa.),  7  Atl.  Rep.  237 ;  Whitmore  v.  O'Neil  v.  Salmon,  25  How.  Pr.  246 
Parks,  3  Humph.  95 ;  Straus  v.  Kern-  Pennington  v.  Bell,  4  Sneed,  200, 
good,  21  Gratt.  584,  590;  Morris  v.  though  a  firm  debt  is  joint  and  sev- 
Morris,  4  Gratt.  293;  Stewart  v.  eral.  In  Collomb  v.  Caldwell,  16  N. 
Slater,  6  Duer,  83,  but  this  case  Y.  484,  it  was  held  that  if  an  assign- 
seems  to  say  that  the  separate  cred-  ment  for  the  benefit  of  partnership 
itors,  as  a  class,  could  successfully  creditors  include  separate  property, 
attack  the  conveyance,  though  it  is  leaving  out  separate  creditors,  it  is 
held  not  to  be  void.  void.     And  see  Stewart  v.  Slater,  6 

1  Evans  v.  Winston,  74  Ala.  349;  Duer,  83;  Smith  v.  Howard,  20  How. 
Lord  V.  Devendorf,  54  Wis.  491 ;  Hoi-  Pr.  121 ;  Averill  v.  Loucks,  6  Barb, 
ton  V.  Holton,  40  N.  H.  77,  and  470 ;  Van  Rossum  v.  Walker,  1 1  id. 
earlier  N.  H.  cases  therein  cited.  237.     Contra,  that  the  separate  cred- 

597 


§509. 


CONDUCT  OF  THE  BUSLNESS. 


A  voluntary  conveyance  by  a  partner  of  his  individual  estate 
may  be  attacked  by  a  partnership  creditor  as  well  as  by  an  individ- 
ual creditor.  Whether  a  judgment  and  execution  must  first  be 
had  depends  on  the  practice  in  each  state  governing  fraudulent 
conveyances.' 

itors  have  not  such  an  exchisive 
claim  upon  the  separate  property 
that  an  assignment  of  it  for  the  bene- 
fit of  partnership  creditors  is  void, 
Newman  v.  Bagley,  IG  Pick.  570; 
Gadsden  v.  Carson,  9  Rich.  Eq.  253. 
In  Morris  v.  Morris,  4  Graft.  293,  it 
was  held  that  if  a  partner  by  will 
subjects  his  real  estate  to  the  pay- 
ment of  his  debts  the  joint  creditors 
could  share  with  the  separate  cred- 
itors. See,  also.  Straus  v.  Kerngood, 
21  Graft.  584,  590.  In  Goddard  v. 
Hapgood,  25  Vt.  351  (60  Am.  Dec. 
272),  it  was  said  that  an  assignment 
of  separate  property  to  pay  individ- 
ual debts  and  return  the  residuum 
to  the  assignor,  if  it  means  the  ex- 


clusion   of     partnership    debts,     is 
void. 

1  Randolph  v.  Daly,  16  N.  J.  Eq. 
313  (liolding,  also,  that  the  other  part- 
ner is  not  a  necessary  party);  Forbes 
r.  Davison,  11  Vt.  660;  Barhydt  v. 
Perry,  57  Iowa,  416  (holding,  also, 
that  subsequent  creditors  whoso 
property  had  gone  to  pay  off  prior 
creditors  would  be  subrogated  to 
tlieir  right  to  attack  the  conveyance). 
Hardy  v.  Mitchell,  67  Ind.  485,  holds 
that  the  partnei'ship  creditor  must 
aver  that  there  are  no  separate  debts, 
or  that  there  wouhl  be  a  surplus  after 
payment  of  them.  Also,  that  both 
sets  of  creditors  could  join  in  set- 
ting aside  the  conveyance. 


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